Delegated Powers and Law Reform Committee

Meeting date: Tuesday, November 26, 2013

Official Report 345KB pdf

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Draft Instrument not subject to Parliamentary Procedure

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Public Services Reform (Prison Visiting Committees) (Scotland) Order 2014 [Draft] (SG 2013/219)

Our legal advisers have raised some points on the order. In particular, the meaning of the term “prison records” as it is used in articles 2(2) and 2(3), which insert new sections 7(5), 7A(6) and 7B(5) in the Prisons (Scotland) Act 1989, could be made clearer by defining the term.

In addition, those provisions confer functions on Her Majesty’s chief inspector of prisons, prison monitors and lay monitors in relation to the inspection of “prison records”. It is not clear whether the term covers records that are located within prisons and those that are located outwith them, nor whether the meaning that is intended is the same, irrespective of the person who exercises the function of inspecting records. The meaning of “prison records”, as the term applies for the purposes of remand centres and young offenders institutions—by virtue of article 2(7)—could also be made clearer.

The Scottish Government has undertaken to consider that lack of clarity before the order is finally laid before the Parliament for approval.

Does the committee agree to draw the draft order to the attention of the Parliament on reporting ground (h), as its meaning could be clearer? Does it also agree to note that the Scottish Government has undertaken to consider the matter before the order is finally laid before the Parliament for approval?

Members indicated agreement.

The order also contains some drafting errors. First, in amending schedule 5 to the Public Services Reform (Scotland) Act 2010, article 3(2)(c) inserts a reference to prison monitors in the wrong place. Secondly, paragraphs 8(2)(a) and (b) in part 1 of the schedule contain an error. The provisions amend schedule 1 to the Public Records (Scotland) Act 2011 to insert reference to lay monitors and prison monitors who are appointed under section 7(3) of the Prisons (Scotland) Act 1989, when they should refer to sections 7A(1) and 7B(1) of that act. Thirdly, the consequential amendments in paragraphs 3(5) and 3(6) and 6(2) and 6(3) of part 1 of the schedule, which amend provisions of the Criminal Justice and Public Order Act 1994 and the Crime and Punishment (Scotland) Act 1997, should be omitted.

The Scottish Government has undertaken to correct the errors when the order is finally laid before the Parliament.

Does the committee agree to draw the draft order to the attention of the Parliament on the general reporting ground, as it contains some drafting errors, and does it also agree to note that the Scottish Government has undertaken to correct the errors before the order is finally laid before the Parliament for approval?

Members indicated agreement.

Furthermore, the committee is invited to welcome the fact that a comprehensive version of the proposed explanatory document has been relaid. The document now contains further details of how the Scottish Government considers that the draft order implements the various requirements of the Public Services Reform (Scotland) Act 2010.

Does the committee agree to welcome that?

Members indicated agreement.

Finally, the committee is invited to note that, in article 1, the draft order does not propose a date when the provisions would come into force. That will be required in the order that is finally laid. Does the committee agree to note that?

Members indicated agreement.