Subordinate Legislation
Management of Offenders etc (Scotland) Act 2005 (Supplementary Provisions) Order 2006 (draft)
Good afternoon, ladies and gentlemen. I welcome everyone to the 18th meeting in 2006 of the Justice 2 Committee and ask that all mobile phones, pagers and BlackBerrys be switched off.
I welcome to the meeting Kenny MacAskill, who is substituting for Stewart Maxwell, and Paul Martin, who has an interest in item 3. However, our first star turn is the Deputy Minister for Justice, who is accompanied by Scottish Executive officials Sheila Tait and Gordon McNicoll. At this point, I should apologise for the fact that my hayfever seems to have broken out today.
Item 1 is consideration of a draft affirmative order. A cover note from the Subordinate Legislation Committee draws our attention to the draft order
"on the grounds that it represents at best an unusual or unexpected use of the power, and at worst there are doubts about whether it is intra vires."
Moreover, the Subordinate Legislation Committee also suggests that article 6 of the order
"raises a devolution issue as it appears to legislate in an area of law reserved to UK Ministers under the Scotland Act."
As members appear to have no questions of clarification, I invite the minister to move motion S2M-4510 and open the formal debate.
The draft Management of Offenders etc (Scotland) Act 2005 (Supplementary Provisions) Order 2006 makes additional provision for the new community justice authorities and their staff, including chief officers.
Given the role that CJAs will fulfil, it will be important for CJA staff, particularly the chief officer, to demonstrate political neutrality and independence from agencies delivering the services. That is the purpose of articles 2 and 3.
Article 4 requires the prospective chief officer to obtain and produce a criminal conviction certificate, commonly known as basic disclosure, prior to being formally appointed. As the chief officer will not act in a child care capacity, it is considered unnecessary to require any form of enhanced disclosure. Article 5, which renders chief officers ineligible for jury service, places the post of chief officer in a similar position to similar appointments in social work and in prisons.
As the principal function of CJAs is to integrate the management of offenders, they must be free to share information with relevant agencies. Article 6 provides for CJAs to be included in the scope of the Re-use of Public Sector Information Regulations 2005. Because they are to be funded wholly or mainly by Scottish ministers, CJAs are probably caught within the scope of those regulations anyway. However, we consider that they should be expressly referred to as a class in the list of public sector bodies specified in regulation 3.
As indicated in the Executive note, the order's provisions have been the subject of discussion and consultation with relevant bodies, most particularly with the Convention of Scottish Local Authorities and the Scottish Prison Service. The Subordinate Legislation Committee considered the draft order at its meetings on 30 May and 13 June, and officials attended the meeting on 13 June to address its concerns. As you have pointed out, convener, that committee took the view that the order
"represents at best an unusual or unexpected use of the power"
in section 22 of the Management of Offenders etc (Scotland) Act 2005 and that
"at worst there are doubts about whether it is intra vires."
That committee also considered that article 6 raises a devolution issue as it appears to legislate in an area of law that is reserved to United Kingdom ministers under the Scotland Act 1998. I would refute both those statements. In my view, the order contains provisions that are properly supplementary to the 2005 act.
Articles 2 to 4 are concerned with the appointment of staff and do no more than make supplementary provision regarding the extent of the CJAs' powers or duties under section 4 of the 2005 act. With regard to articles 5 and 6, I consider that in order to give full effect to the provisions of the act it is necessary or expedient that chief officers should be ineligible for jury service and that CJAs should be subject to the Re-use of Public Sector Information Regulations 2005.
As I have mentioned, the Subordinate Legislation Committee has concerns that the article dealing with the 2005 regulations is outwith the competence of the Parliament in that it deals with either data protection or intellectual property. We do not agree. The article merely applies the 2005 regulations expressly to CJAs. It does not alter or affect the law relating to data protection or intellectual property. Indeed, the 2005 regulations expressly state that they do not apply to documents where a third party owns the relevant intellectual property rights. We therefore believe that ministers have the necessary power in terms of the 2005 act to make this order. Of course, it would be for a court to decide whether the order is ultra vires, but I believe that we are acting properly within the powers that are available to us and the intention of the legislation.
I move,
That the Justice 2 Committee recommends that the draft Management of Offenders etc. (Scotland) Act 2005 (Supplementary Provisions) Order 2006 be approved.
Motion agreed to.
I thank the minister for one of his shorter appearances. I also thank his colleagues.
Home Detention Curfew Licence (Prescribed Standard Conditions) (Scotland) Order 2006 (SSI 2006/315)
This is a negative instrument. The Subordinate Legislation Committee has not drawn it to the attention of this committee. Are members content to make no recommendation on the order?
No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Fox, Colin (Lothians) (SSP)
Macmillan, Maureen (Highlands and Islands) (Lab)
Maxwell, Mr Stewart (West of Scotland) (SNP)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Against
Davidson, Mr David (North East Scotland) (Con)
The result of the division is: For 6, Against 1, Abstentions 0.
It is agreed that the committee will make no recommendation on the order.