Criminal Justice Committee [Draft]

Meeting date: Wednesday, April 27, 2022

Official Report 551KB pdf

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Subordinate Legislation

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Electronic Monitoring (Relevant Disposals) (Modification) (Scotland) Regulations 2022 (SSI 2022/93)

The next item is consideration of a Scottish statutory instrument. I refer members to paper 3. Do members have any comments to make, or are we content with the instrument?

I appreciate that negative instruments are usually waived through nice and quickly, so I apologise for taking up time. However, I want to refer to the policy note that accompanies the instrument. In essence, the instrument is about changes to electronic monitoring and bail conditions. Under the policy objective section, it says that the instrument makes

“a technical change to ensure that the policy intention of having electronically monitored bail includes specific reference to ... two further ways in which a person on bail can have conditions varied.”

What are those “two further ways”? What variations would the change induce?

The policy note says that there has been extensive consultation with the Scottish Courts and Tribunals Service, but neither the consultation nor the SCTS’s response is contained in the note. It also says:

“Extensive impact assessments were undertaken”,

and that the change will have

“limited ... impact on the wider ... use of electronic monitoring of bail.”

How will we know whether that will be the case? The note does not quantify or, indeed, define the change.

I do not know how much of an issue the change is, which is part of the problem. I would have preferred the Government to have explained what the variations are and the resulting potential changes to bail. Ministers could have done that in person, although I appreciate that doing so would be unusual for an instrument subject to the negative procedure. However, they could have at least done that in writing. As a committee, we are none the wiser as to what we would be agreeing to, so I am uncomfortable with agreeing to the instrument for that reason.

I appreciate that annulment is the only option that is available to us. However, I want to put on record that I do not think that it is suitable to simply provide a one-page policy note that does not explain what we are being asked to agree to. I am sorry, but that sets a bad precedent.

I take your points. The best suggestion that I can make is that we follow up your queries in writing with the Scottish Government. Do members agree to do that?

Members indicated agreement.

I see that no one else has any comments. Presumably, we will come back next week to reconsider the matter.

The committee does not need to return to the issue next week specifically. Obviously, the committee has agreed to follow up the matter in writing. The clerks will do that on your behalf, and we will get a response back to you as soon as possible. We will try to make sure that that is in time for next week’s meeting. On the basis of that response, if any member felt that they were still unable to support the instrument, we would invite them to speak to the chamber desk about lodging a motion to annul. That could be dealt with at next week’s meeting. There is still time to do that—the instrument must be disposed of by 9 May. I am not suggesting that any member lodges such a motion, but time is available, should anyone wish to do so. We will ask the Government for a response in writing, and members can decide what to do on that basis.

Thank you.

I thank Jamie Greene for raising the issue. The policy note could have been clearer. It refers to

“two further ways in which a person on bail can have conditions varied.”

I am struggling to determine what those two variations are. If that is the substance of the SSI, I do not understand why that has not been set out to the committee.

It looks as though the Government is saying that the instrument will just make a technical change, that we do not need to worry about it and that, as Jamie Greene has suggested, we just need to rubber stamp it. I suggest that the Government should note for future reference that, when we get an SSI policy note, there needs to be a bit more information in it. We need to know what we are being asked to sign off.

Thank you for raising that issue. We can include that in our correspondence to the Scottish Government.

That concludes the public part of our meeting.

10:52 Meeting continued in private until 13:32.