Justice 1 Committee, 29 Sep 2004

Meeting date: Wednesday, September 29, 2004

Official Report 298KB pdf

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Subordinate Legislation

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International Criminal Court (Enforcement of Fines, Forfeiture and Reparation Orders) (Scotland) Regulations 2004 (SSI 2004/360)

I welcome Sylvia Jackson, convener of the Subordinate Legislation Committee, to the meeting. She is aware that we have just started our discussion on the International Criminal Court regulations. We note that there is quite a strong report from the Subordinate Legislation Committee outlining its concerns, so we are grateful that Sylvia could join us for a short while. Perhaps she would like to say something to amplify those concerns.

I note that Mike Pringle, who is a member of the Subordinate Legislation Committee, is also here. He, too, has expertise in the area.

I hope that the committee will bear with me, because there is a substantive problem with the regulations, but there is also an issue to do with the Scotland Act 1998. I will work my way through the issues, if the committee is okay with that.

The Subordinate Legislation Committee feels that there is a strong case that the regulations that purport to authorise the Scottish ministers to appoint the Lord Advocate as the person to enforce orders of the International Criminal Court are ultra vires. The purpose of regulation 3, which is the one in question, is to authorise the Scottish ministers to appoint the Lord Advocate as that person, and regulations 4 and 5 impose duties directly on the Lord Advocate rather than on the Scottish ministers collectively—I will return to that issue later.

The Subordinate Legislation Committee doubted that the enabling power allowed that authorisation, so it asked the Executive for further justification and questioned the constitutional propriety of conferring statutory functions on the Lord Advocate as an individual Scottish minister that do not relate to his position as head of the systems of criminal prosecution and of the investigation of deaths in Scotland. The Executive replied that it considers that regulation 3 is within the vires of the enabling power, which confers a power on the Scottish ministers to appoint a person to act on behalf of the ICC. In the Executive's view, section 26 of the International Criminal Court (Scotland) Act 2001 provides no reason why the Lord Advocate should not be that person.

The Subordinate Legislation Committee was not persuaded, because section 26(2) of the 2001 act provides:

"The regulations may authorise the Scottish Ministers-

(a) to appoint a person to act on behalf of the ICC for the purposes of enforcing the order; and

(b) to give such directions to the appointed person as appear to them necessary."

We think that that indicates that the person is a third party. We see no indication that the section intended that the Scottish ministers should appoint one of their own number. On the contrary, because it also enables Scottish ministers to give directions to the person appointed, the appointment of a Scottish minister appears clearly to be ruled out; it cannot have been intended that the Scottish ministers should give the Lord Advocate or any other minister directions as to how they were to carry out their functions.

Simply to specify by regulations the person to be appointed also appears to be of doubtful vires, as it can be argued that the power is intended simply to authorise to ministers the subdelegation of the power to chose the person appointed, so it is not for the regulations to specify that person. The Subordinate Legislation Committee noted that, in that regard, the equivalent English regulations, which are made under identical powers, confer powers to appoint a person rather than a named individual.

In the Subordinate Legislation Committee's view, if there is any doubt about the intention behind the section 26 powers, the situation is clarified beyond all reasonable doubt by statements that were made by the ministers in charge of the International Criminal Court (Scotland) Act 2001 on two occasions during its passage through the Parliament. I think that the committee has before it the information on what Iain Gray and Jim Wallace said.

Yes, we do.

If, as the ministers stated, it would be inappropriate to confer powers directly on the Lord Advocate in the parent act, it cannot be right to do so by subordinate legislation under that act.

That seems to the Subordinate Legislation Committee to be the central point, but there is the second point that the problem raises a serious constitutional issue about the collective responsibility of the Scottish ministers under the Scotland Act 1998. Do you want me to go into that aspect, convener? It is not the substantive point that we want to make.

I think that we understand the point that you were going to make anyway, but what you have said has been helpful.

I clarify that committee members do not have Iain Gray's statement before them, but I will pass a copy to them. The relevant bit—from the conclusion of Iain Gray's statement—is highlighted. It says:

"It is therefore appropriate that"

the functions

"are conferred upon Scottish ministers collectively."—[Official Report, Justice 2 Committee, 26 June 2001; c 306.]

He said that in response to an amendment that was moved by Christine Grahame, whose argument was that the Lord Advocate should be given responsibility for enforcement under what became the International Criminal Court (Scotland) Act 2001. I will pass that document to the committee.

Would it be useful if you accepted a motion from me that nothing further be done in relation to the instrument? The Subordinate Legislation Committee has considered the instrument carefully, had considerable discussion of the subject and remained unconvinced. That committee is best placed to advise us and its convener has come here to do that. I would like to accept her advice; I take that position not in a partisan spirit, but with the aim of good administration and of protecting the Lord Advocate's independence, which is very important. As a non-lawyer, I do not pretend to understand fully the implications of the Lord Advocate being put or—perhaps equally important—being thought to be put in a position in which others can direct the discharge of his duties. If you were minded to accept a motion without notice, I would be more than happy to move one.

The deadline for considering a motion is Tuesday. The matter is open to the committee. I propose further discussion before we return to Stewart Stevenson's proposal. The issue is not whether a motion without notice is possible. We should ensure that the committee is clear about the issues and what it wants to do.

I understand Stewart Stevenson's suggestion, but before we proceed to that option it might be more appropriate to write to ask the Scottish Executive to amend the instrument. The information that the convener of the Subordinate Legislation Committee has supplied is that the problem lies in having a named individual. Perhaps we could suggest in a letter from our convener that the Executive might wish to amend the instrument to say "the Scottish ministers will apply". That would put the matter in the hands of the Cabinet or of the First Minister.

If the Executive accepted that suggestion, that would get us out of a possible problem that none of us wishes the Executive or the Parliament to face, which is that the regulations might be considered ultra vires rather than intra vires. That is the first option with which we should proceed, although Stewart Stevenson's suggestion should be kept in reserve.

That course of action is also open to the committee. A policy officer from the Executive's criminal procedure division and a solicitor from the Executive's legal and parliamentary services are here if members wish to hear from them.

Unless those people say that the Executive has had a change of mind or heart, or both, I see no need to hear from them. If the committee accepts my suggestion, we will write to the Executive to emphasise our serious concern, which is additional to the Subordinate Legislation Committee's serious concern. I hope that if this committee allied itself with the Subordinate Legislation Committee, the Executive might change its mind.

If the gentlemen were going to say that the Executive had had a change of mind, that would be fine, but I doubt that they are. That being the case, I do not think that the suggestion that we should hear from them now is appropriate at this juncture.

Bill Butler has made another proposal about what the committee might do.

I want to clarify what Sylvia Jackson said. You are suggesting that the regulations might be ultra vires and that a constitutional issue might arise from that, although not a substantive one. You also seem to be concerned, as I am, that the Executive appears to have changed its position. I took part in the debate on the International Criminal Court (Scotland) Bill and I remember the discussion about whether the Lord Advocate should be named in the legislation—the amendments to that effect were rejected. Has the Executive attempted to give you an explanation for its turnaround?

No. The Executive has provided nothing apart from its view that that is how it interprets the International Criminal Court (Scotland) Act 2001.

Sylvia Jackson might be able to answer my question. The Subordinate Legislation Committee considers numerous statutory instruments, but I thought that we had written to the Executive after we had discussed the regulations and that we had received a reply. Perhaps what Bill Butler is suggesting has already been done.

The Subordinate Legislation Committee got a reply; we have excerpts from it in our papers.

We got a reply, but we had not suggested an amendment, which is what is being suggested now. I am informed that what Stewart Stevenson suggested cannot be done, because a minister would have to be present.

Do you mean that it is necessary to have a minister present to annul the regulations?

I mean that a minister must be present to debate a motion to annul the regulations.

We will check the procedure for that.

In my view, the advice that we have received from the Subordinate Legislation Committee is overwhelming, so I think that, given that the officials are here, it would be useful for them to say why they have not taken cognisance of that advice. Our timeframe is very tight and I do not want us to lose sight of the main thrust of the legislation, which is what we are trying to achieve. Anything that we can do to ease the flow of conversation at this early stage, before we get into entrenched positions, would be helpful.

I just want to be clear about the timescales. Did someone say that the 40 days would be up on Tuesday?

That is the deadline for lodging a motion to annul the regulations.

That is the deadline for lodging such a motion, but would it be possible to deal with it after then? I just want to be clear about the timetable.

Tuesday is the last opportunity for the Justice 1 Committee to consider a motion to annul the regulations, so that it could recommend annulment to the Parliament. The 40th day will fall on the first day back after the October recess, so Tuesday will be our last opportunity to consider a motion to annul the regulations. The Executive would be entitled to attend that debate.

A motion to annul is the nuclear option and, in my experience, it is generally not necessary if the Executive acknowledges that there is strong feeling on a matter. Perhaps now would be an opportunity for any member of the committee to indicate that they felt that the regulations should proceed in their current form. In the absence of such an indication—I suspect that that is the situation that we are in—the Executive might consider whether it is at risk of losing the argument, either in committee or, subsequently, in Parliament and might therefore consider withdrawing the regulations and reintroducing them in another form, as Bill Butler suggested. There is no point in our being confrontational if it is evident that there is a clear view on the subject. In my view, the Executive does not generally fail to recognise the realities of the situations in which it finds itself.

I take Stewart Stevenson's point. We want an option that works, so that the serious doubts and concerns that have been raised by the Subordinate Legislation Committee can be addressed. Although I take Margaret Mitchell's point that time is short, there is still enough time to pursue the option that I suggested. The Executive may be unwilling to pursue that option, but we will cross that bridge when we come to it. I still suggest that we should do what I said a few moments ago.

I support Bill Butler's proposal, in so far as we can do both things if we do that. If we are not satisfied, we can move to Stewart Stevenson's proposal—a motion to annul—and have the minister before the committee to debate with us. We can then decide whether to agree to that motion to annul the instrument.

I presume that Sylvia Jackson takes the same view that the committee appears to be taking. I do not think that there is any issue with the Lord Advocate being the person who exercises the powers of enforcement; however, that should be done in his capacity as a minister of the Scottish Executive and with the collective accountability of that position. We do not object in any way to the end result, but we share the Subordinate Legislation Committee's concerns about whether the instrument is competent. There is also a policy matter in that, on the face of it, the Executive appears to have reversed its position, and that cannot be allowed to happen.

We think that what you are suggesting would be a reasonable route to pursue.

We are trying to save the Executive from itself, if I may say so.

If members agree, we will write this afternoon to the Executive, outlining our serious concerns and our agreement with the Subordinate Legislation Committee that there are big issues in the instrument that need to be addressed. Following Bill Butler's suggestion, we will ask for the instrument to be withdrawn and relaid so that it is vires. We will also ask the Executive to address the discrepancy between the policy position that it adopted during the passage of the bill and the policy position that it appears to be taking now. As soon as a reply to that letter is available, we will circulate it to members. If members are not satisfied with the Executive's response, is there a deadline for lodging a motion to annul? [Interruption.] I am advised that the clerks would need to be given notice on the day before the next meeting so that they could draft a motion with the appropriate wording.

I would not be quite so prescriptive. We have described the problem, and the Executive might find a variety of ways of dealing with it—including, for example, amending the instrument. As long as we receive an indication that it will end up in the right place, I would not be unduly prescriptive.

I would go along with that. That is more emollient.

Well, it works.

Given that the Executive maintains—I presume—that the instrument is vires, to suggest that it makes it vires is probably looking for a lot. I would have liked to hear what the Executive had to say, but I realise that that is not the collective will of the committee. We have to hope that, if the Executive is convinced that its way is right, the political reality will cause it to change its mind, as opposed to winning the argument of the day.

That ends the discussion. As Stewart Stevenson has suggested, we will be less prescriptive. We are now clear on the process; let us see what response we get from the Executive. I thank the Subordinate Legislation Committee, the legal adviser, the clerks and Sylvia Jackson for taking the trouble to come to the committee and voice their concerns.

At the next meeting of the Justice 1 Committee on Tuesday 5 October at 3 pm, we will undertake our quarterly consideration of petitions and consider our approach to the Emergency Workers (Scotland) Bill at stage 2. The strange timing of the meeting is due to the arrangements for the opening of the new Parliament building, which apply for that week only. Thank you for your attendance.

Meeting closed at 13:10.