Criminal Justice Committee

Meeting date: Wednesday, September 1, 2021

Official Report 620KB pdf

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Police, Crime, Sentencing and Courts Bill

The next item of business is consideration of a legislative consent memorandum for the UK Police, Crime, Sentencing and Courts Bill. I welcome back Keith Brown, the Cabinet Secretary for Justice and Veterans. I also welcome Graham Thomson, the head of the Scottish Government’s police powers and workforce unit. I refer members to paper 3.

I invite the cabinet secretary to make a short opening statement.

I am grateful to the committee for giving me the opportunity to take questions on the LCM for the Police, Crime, Sentencing and Courts Bill.

I recognise that crime has no respect for borders or boundaries and, as such, must be tackled across multiple jurisdictions. Applying the relevant provisions of the bill to Scotland will help to meet the Scottish Government’s commitment to modernising and reforming the justice system, and to making Scotland a safer, fairer and more inclusive country.

The UK Government’s stated policy aim of the bill is to enhance the democratic accountability of police forces, to build public confidence in policing and to improve the efficiency and effectiveness of emergency services through closer collaboration.

I make it clear that policing is, of course, a devolved matter, so significant portions of the bill do not extend to Scotland, including elements of the bill that many will see as being controversial.

However, some of the provisions impact on devolved functions. On 5 August, the Scottish Government lodged an LCM for those provisions that extend to Scotland, in which it recommended consent for amendments to the Crime (Overseas Production Orders) Act 2019; orders under the Sexual Offences Act 2003 and the Abusive Behaviour and Sexual Harm (Scotland) Act 2016; the extension of the Summary Jurisdiction (Process) Act 1881; the amendment to section 60 of the Police Act 1996; and the extension of the annual reporting duty for the police covenant to cover the British Transport Police and the National Crime Agency.

At the time of lodging the LCM, the Scottish Government was not in a position to be able to recommend consent for the power to extract information from digital devices of witnesses, victims and others, as discussions were still on-going between the former Lord Advocate and UK ministers.

The Lord Advocate had written to UK ministers to ask them to consider the case for extending the provisions on the extraction of information from devices to allow for the extraction of information from devices used by persons other than the deceased. UK ministers have since denied that request.

Although the Lord Advocate and I find that decision disappointing, UK ministers have committed to keeping the provisions under review, once they are in force. That will allow the issue to be returned to, should operational difficulties be identified.

On 30 August, I wrote to UK ministers to recommend, in principle, that the Scottish Parliament grants an LCM in relation to the extraction of data provisions. However, I advised them that I would not be prepared to start the formal LCM process until the draft code of practice had been finalised. That will allow the Scottish Parliament the opportunity to carry out proper scrutiny of the provisions before consenting to them. Incidentally, I think that the Northern Ireland Executive has taken the same position.

I hope that my time at the committee will provide an opportunity to address any concerns, although I am sure that I will rely heavily on Graham Thomson to do that. I welcome the chance to answer any questions.

Thank you, cabinet secretary. Does anybody have any questions?

Thank you for the opening statement. The committee papers cover the topic extensively.

My first question is perhaps not for the cabinet secretary, as it is a technical question about the draft legislative consent motion. I welcome the fact that that agrees to the relevant provisions of the UK bill. Cabinet secretary, did you say that the Scottish Government does not consent to, or does not agree with consent being given to, the provisions on the extraction of data from digital devices? How does that relate to the draft motion? The motion agrees to the provisions in the UK bill—there is nothing in it that disagrees with or does not consent to anything. What would be the legislative process by which the Scottish Government would pursue not granting consent?

As you suggest, I will let Graham Thomson answer part of that. We have agreed to the thrust of what is proposed, but the bit that we have a concern about is the code of conduct that will be used in relation to the extraction of data from devices. We should see that before we agree to it. We have seen a draft version, as has the Northern Ireland Executive, but we want to see the final version before proceeding and giving our consent. I think that that is the situation.

It is. The only thing that I would add is that, today, the cabinet secretary is asking that the legislative consent motion be agreed to, with the exception of the data extraction issues. If we come back and are content with the code of practice, we would bring back a supplementary legislative consent motion for consideration by the committee in relation to those provisions.

If the Scottish Government—this is a further technical matter—was not happy with either the draft wording of the code of conduct or what UK ministers proposed, would you amend the legislative consent motion, or have it agreed to as drafted but subsequently issue another one? I am sorry—I am still a bit confused as to the process.

Today, we are asking the committee to consent to the motion as drafted, if it is content to do so, and we would bring back a supplementary motion at a later date.

We are content with the draft code of practice; we just want to see the final version first.

So, it is not the case that the Scottish Government has a problem with the principle of the extraction of data, which is perhaps how it was reported.

Yes, although, as I said, the former Lord Advocate expressed concerns because of the interrelationship with his functions. However, if the code of conduct is sufficient—we have had an assurance about that from the UK Government, and it will come back to us in future—and if the final version reflects what is in the draft, it should not be an issue for us.

Thank you—that is helpful.

I will follow on from that and try to get my head around what the LCM is supposed to be doing.

I note that the provision applies where the device owner has given agreement, so that bit does not seem to be contentious. I understand that a lot of cases now involve the extraction of data from mobile devices, so it is quite a big issue, and the framework is about ensuring that the police and other agencies do that within the statutory legal framework and not just on the basis of common law. If the Scottish Government’s position is just to be cautious about that, because it will be a big issue, I concur that it seems reasonable that you want to see the finalised code of practice before giving consent.

I just want to make sure that my basic understanding of the LCM is correct, which is that the provision applies when the owner has already given consent. There are other provisions, such as when the device owner is incapacitated or is a child, but, in the main, the provision applies to the device owner.

I will be corrected by my official if this is not the case, but I think that I am right in saying that we already have that legal basis in Scotland. Down south, they do not have that; common law is used. It is a case of trying to make those things consistent. Previously, the point of disagreement was whether the provision could be extended to people who had died. That was the point that the Lord Advocate was interested in, and we have some assurances on that. It will not be agreed to by UK ministers at this stage, but we have some assurances around that, which we are willing to accept.

A draft code of conduct is not the same as a final code of conduct. If we know that the UK Government is saying, “This is our final version,” there is nothing that will give us cause for concern. As background, the committee’s predecessor went over this area quite exhaustively when it considered cyberkiosks and so on. There is a parliamentary sensitivity about that, which we are trying to be sensitive to by saying, “Let’s see what the final one says.” If it says what the draft one says, I think that we are okay.

Thank you.

For clarity, the provisions extend only to England and Wales; the issue is not about Scotland, where we have our own legislative basis. The clauses are in relation to the operability in cross-jurisdictional situations.

Thank you—that is a helpful clarification.

Cabinet secretary, am I right in saying that we are still waiting for clarification from the UK Government on the points that we have raised in relation to the proposed power?

The only thing that we are still looking for is for that code of conduct to be finalised.

Once we have that information and clarification back, do we have a broad timescale for the next stage?

Yes. During October, the House of Lords will consider it and, at that point, we expect a new version of the code of practice to be tabled. We expect to see an advance version of that at official level, at which point we will be able to provide advice to the cabinet secretary, and we can revert to the committee after that.

Thank you. I thank the cabinet secretary and his officials for attending. We will have a short suspension to allow our witnesses to leave.

11:58 Meeting suspended.  

11:58 On resuming—  

The committee will now consider the legislative consent memorandum for the Police, Crime, Sentencing and Courts Bill. I invite views from members on any issues that they wish to be included in the committee’s report on the LCM.

For the avoidance of doubt, action 11 in the committee’s papers invites members

“to consider whether to agree with the recommendation”

to approve the legislative consent motion, but

“also that consent should not yet be given to the power to extract information from digital devices”.

However, my understanding is that, as a committee, we are voting solely on the motion as worded and not on any subsequent amendments or theoretical motions. Therefore, for the avoidance of doubt, I disagree with action 11 but agree to the motion as worded.

12:00  

Thank you for raising that issue; it is noted and we will include it in the committee’s report.

Does the committee agree that the Scottish Parliament should give its consent to the relevant provisions in the Police, Crime, Sentencing and Courts Bill, as set out in the Scottish Government’s draft motion?

Members indicated agreement.

Are members content to delegate to me the publication of a short report that summarises the outcome of our deliberations on the LCM?

Members indicated agreement.

The issue will now move to the chamber for all members to decide on the basis of our report.