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Session 2005 - 06
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Standing Committee Debates

Draft Management of Offenders etc. (Scotland) Act 2005 (Consequential Modifications) Order 2006

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Eleventh Standing Committee
on Delegated Legislation

The Committee consisted of the following Members:


†Mr. Martyn Jones

Barrett, John (Edinburgh, West) (LD)
†Blizzard, Mr. Bob (Waveney) (Lab)
†Brown, Mr. Russell (Dumfries and Galloway) (Lab)
†Byers, Mr. Stephen (North Tyneside) (Lab)
†Cairns, David (Parliamentary Under-Secretary of State for Scotland)
†Cruddas, Jon (Dagenham) (Lab)
†Dowd, Jim (Lewisham, West) (Lab)
†Ellwood, Mr. Tobias (Bournemouth, East) (Con)
†Hands, Mr. Greg (Hammersmith and Fulham) (Con)
Liddell-Grainger, Mr. Ian (Bridgwater) (Con)
†Lloyd, Tony (Manchester, Central) (Lab)
†McCafferty, Chris (Calder Valley) (Lab)
†Mahmood, Mr. Khalid (Birmingham, Perry Barr) (Lab)
†Merron, Gillian (Lord Commissioner of Her Majesty’s Treasury)
Milton, Anne (Guildford) (Con)
Penning, Mike (Hemel Hempstead) (Con)
Redwood, Mr. John (Wokingham) (Con)
†Skinner, Mr. Dennis (Bolsover) (Lab)
†Swinson, Jo (East Dunbartonshire) (LD)
†Tipping, Paddy (Sherwood) (Lab)
†Wishart, Pete (Perth and North Perthshire) (SNP)
Ms Sarah Ioannou, Committee Clerk
† attended the Committee

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Thursday 23 March 2006

[Mr. Martyn Jones in the Chair]

Draft Management of Offenders etc. (Scotland) Act 2005 (Consequential Modifications) Order 2006

2.30 pm

The Parliamentary Under-Secretary of State for Scotland (David Cairns): I beg to move,

    That the Committee has considered the (the Draft Management of Offenders etc. (Scotland) Act 2005 (Consequential Modifications) Order 2006.

The Chairman: With this it will be convenient to take the draft Smoking, Health And Social Care (Scotland) Act 2005 (Consequential Modifications) (England, Wales And Northern Ireland) Order 2006 and the draft Water Environment and Water Services (Scotland) Act 2003 (Consequential Provisions and Modifications) Order 2006.

David Cairns: My thanks go to you, Mr. Jones, and to the Committee for agreeing to take these three technical instruments together. This is the first time that I have the pleasure of serving under your chairmanship. I will try to stay in order, particularly as I notice from “Dod’s” that one of your hobbies is target shooting and I represent a fairly large target at close quarters. I was pleased to note that another of your hobbies is first aid. So if we have a Dick Cheney moment you will be on hand to sort us out.

All three Orders before us today are to be made under section 104 of the Scotland Act. This power is used when changes require to be made to the law of England and Wales or Northern Ireland or when modifications of reserved law are required as a consequence of legislation in the Scottish Parliament. It may be helpful if I explain how I propose to proceed. There is a great deal of technical detail in how the orders are enabled and enacted and that is all contained in the instruments themselves and in the explanatory note and the explanatory memorandum. In my brief speech— [Hon. Members: “Hear, hear.”] I knew that would be popular. I will restrict myself to some of the policy background and attempt to answer any detailed questions. I refer hon. Members to the explanatory memorandum, which I am sure they have all studied in any event.

The first order before us this afternoon, the draft Management of Offenders etc. (Scotland) Act 2005 (Consequential Modifications) Order 2006, does three things. It ensures that prisoners transferred on a restricted basis from Scotland to elsewhere in the United Kingdom can continue to be subject to the provision of the Management of Offenders etc. (Scotland) Act. Likewise, it enables prisoners transferred to Scotland to be released in Scotland and
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remain subject to the control of the English and Welsh authorities although monitored by contractors operating the new home detention curfew scheme in Scotland. The changes will harmonise prisoner release systems throughout the United Kingdom, and to ensure more efficient supervision for prisoners. Finally, it disqualifies the chief officers of the newly established community justice authorities from being Members of Parliament.

Although the orders make amendments only to the law of England, Wales, Northern Ireland and Scotland as a result of the changes made by the Management of Offenders etc. (Scotland) Act 2005 I shall take a moment to explain some of the policy ideas behind the order. The law in Scotland on the release of prisoners has been changed in the 2005 Act to impose greater restrictions on certain sex offenders following their release. Those are sex offenders serving a sentence of more than six months, but less than four years. Such offenders will now be released on licence at the half-way stage of their sentence rather than being released unconditionally as is the case for most other prisoners serving a term of less than four years.

The 2005 Act will also change the law in Scotland by creating a new system of release on home detention curfew licence for certain prisoners, similar to the scheme already operating in England and Wales. We currently transfer prisoners of all types between jurisdictions, and nothing in the order changes that. It will simply ensure that, following their release from custody, such prisoners are appropriately monitored and supervised in the jurisdiction to which they have been transferred. The final part of the order is a consequence of the establishment of the new community justice authorities that provide a strategic level for planning and managing the performance of local authorities in relation to the management of offenders in Scotland. The new CJAs will be in receipt of Government funding and the chief officers of each will be responsible for that funding. It is therefore in line with current policy to disqualify those individuals from being Members of Parliament.

The second order is the draft Smoking, Health And Social Care (Scotland) Act 2005 (Consequential Modifications) (England, Wales And Northern Ireland) Order 2006. Despite the title, the Committee will be relieved to hear that the instrument has nothing whatsoever to do with smoking. The provisions of the Act make it necessary to amend certain pieces of legislation for England, Wales and Northern Ireland. Clearly the Scottish Parliament does not have the legislative competence to make such amendments.

The order updates legislation to reflect the introduction in Scotland of NHS pharmaceutical care services that replace the current NHS pharmaceutical regime. It also reflects changes to the listing by health boards of NHS optometrists in Scotland. Some 90 per cent. of the order is related to changing references in legislation from “pharmaceutical services” to “pharmaceutical care services”. I would be happy to explain, if required, the difference between the two regimes, but the order simply makes references to the new regime and replaces references to the old one.

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The other 10 per cent. of the order deals with the optometry and ophthalmic listing system introduced in the Act. That is broadly similar to the system in operation in England and Wales. In England, a primary care trust in an area bordering Scotland may wish to make arrangements with contractors on the ophthalmic list of an adjoining health board for the provision of co-management schemes in its area. That is all provided for in section 4A of the National Health Service and Community Care Act 1990. The amendment clarifies that the contractors with whom the arrangements may be made are named on the first part of the new ophthalmic list system.

The final order is the draft Water Environment and Water Services (Scotland) Act 2003 (Consequential Provisions and Modifications) Order. It is designed to ensure that certain consents granted under section 36 and orders under schedule 5 of the Electricity Act 1989, as well as existing planning permissions, do not conflict with those granted by the Scottish Environment Protection Agency under the Water Environment (Controlled Activities) (Scotland) Regulations 2005. That is in line with the Government’s better regulation agenda and reflects the fact that the Scottish Executive have undertaken a significant amount of work to ensure that the regulations fit with existing legal requirements.

The order also makes amendments requiring the Fisheries Committee in Scotland to consult with SEPA, and amendments in relation to landfill tax as a result of the regulations, which have replaced parts of the Control of Pollution Act 1974 with a new remedial action regime. Again, there is a lengthy technical explanation of all the issues in the explanatory memorandum.

It might be helpful to address briefly why there are to be two separate systems of consent for the construction and operation of power stations in Scotland. The point of the order is to ensure that the separate systems operate effectively in line with better regulation. Renewable energy is an important part of the Government’s energy policy and should be encouraged. However, it is also important to bear in mind the impact of renewable energy on the environment in which such power stations are built and operated.

The order has its origins in the EU water framework directive, directive 2000/60/EC. The directive sets a Europe-wide framework for the long-term sustainable management of water. In Scotland, the directive is implemented by the Water Environment and Water Services (Scotland) Act 2003, which, in particular, gives Scottish Executive Ministers the power to introduce regulations to control activities that impact on the water environment. They have done that, and the Water Environment (Controlled Activities) (Scotland) Regulations 2005 were made using that power. The regulations mean that from 1 April 2006 SEPA will be responsible for authorising all controlled activities, such as the abstraction of water from the water environment so as to ensure compliance with the directive.

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Separate consent will still be required for the construction, extension or operation of generating stations or the grant of water rights under the Electricity Act so that matters of wider concern may still be addressed. It is therefore desirable that steps are taken to prevent duplication and potentially conflicting regulatory control between the two regimes. For example, without the third order, SEPA and the Scottish Ministers could specify different abstraction points or different compensation flows in authorisations under the different regulations. That would clearly not be desirable.

I hope that the Committee has found these explanations, which should be read together with the fuller explanatory notes, helpful. The proposals are a sensible and necessary use of the order-making powers in section 104 of the Scotland Act, and I commend them to the Committee.

2.39 pm

Mr. Tobias Ellwood (Bournemouth, East) (Con): I am delighted to be able to serve under your tutelage today, Mr. Jones. I am grateful to the Minister for the explanations that he has put forward of the three orders.

I will save the Committee’s time by saying that we do not have any issues with the first and second orders. The first revises, updates and harmonises the laws on the transfer of prisoners between the north and south, or the south and north depending on which way one looks at it. The second is a quite wise updating of legislation on the NHS and pharmaceutical care services.

I have a few questions on the third order to ask the Minister, if I may. It has to do with the difference between the reserve powers used by Scotland and the Scottish Executive and those in Westminster. There is concern that, while at the moment Holyrood and Westminster are in harmony over policy that originates in Westminster, we could find ourselves in a situation in which they differ. For example—it could well happen—a party might come to power in Scotland that has a different approach to water, electricity or even nuclear power from that adopted in London. Can the Minister explain how such differences of opinion would be reconciled?

The Minister gave as an example the fact that the main powers concerning the construction of a water station are held in Westminster, but certain planning powers are held in Scotland. It is becoming a common theme in dealing with Scottish legislation that Westminster makes policy, but Scotland has to deal with the detail. It would be useful for the Committee to hear how a difference of opinion might be reconciled. We have no objection in principle to the orders, but I should be grateful to hear the Minister’s views.

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2.41 pm

Jo Swinson (East Dunbartonshire) (LD): I, too, am pleased to serve under your chairmanship, Mr. Jones. The Liberal Democrats also broadly agree with the orders, but would like to put a few questions to the Minister.

On the management of offenders, what measures will be in place to maintain monitoring should a sexual offender who is on licence move from Scotland to England, and where will the ultimate responsibility lie? That needs to be clarified: will it rest with the police force in the region where the crime was committed and where the offender was sentenced, or will it pass to the police force in the new location?

On health and social care, I do not necessarily want to draw the Minister into a long debate about the difference between pharmaceutical care services and pharmaceutical services. However, I understand that pharmacists and doctors are to enter into collaborative treatment of patients. That can be a good thing in many ways. However, who will have ultimate responsibility for the patient’s welfare? Will it still be the main doctor, and how will the situation be managed?

Finally, on water and the environment, I was interested in what the Minister said about the two forms of consent being required separately. That should allow local people to have their say, as usual, through the planning process. However, if SEPA is to have primacy over Scottish Ministers in the granting of authorisation for the extraction and diversion of water for generating stations, it is important to ask what recourse local residents will have when they have problems and want to object to an alteration to their local water environment. I am keen to know in particular what evidence SEPA will be required to submit to Scottish Ministers and members of the public in order to justify decisions that it takes in exercising its primacy power over Scottish Ministers and their decision making.

Generally, we agree that the orders should tidy up the legislation, but it would be useful to have answers to the points that I have raised.

2.43 pm

The Parliamentary Under-Secretary of State for Scotland (David Cairns): I am very grateful to the hon. Members for Bournemouth, East (Mr. Ellwood) and for East Dunbartonshire (Jo Swinson) for their comments and questions. The hon. Gentleman asked what would happen if different parties were dealing with the issues north and south of the border. I would begin by saying that the Minister responsible for this area of policy in the Scottish Executive is a Liberal Democrat, so some of the issues that he mentioned apply, although the Liberal Democrats are party to a coalition agreement. That Minister is a constituent of mine, but he has that responsibility.

We are already dealing with the post-devolution reality of the need to align our new politics with the wish of the people. In Scotland, it is the wish of the people that there be a coalition, because no one party
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has the power. Whatever changes happen, either in the UK or in Holyrood, politicians will have to accommodate themselves to what the people actually want. I do not think the people of Scotland will forgive any of us for playing politics on this issue. We have robust devolution guidance notes—we have a memorandum of understanding—on how these things should operate. That is the general principle in accordance with which the legislation is to be enacted and carried out.

In this case, I accept that there is more room for an explanation because of the nature of the area we are discussing. The Electricity Act itself—the policy of that—is reserved to Westminster, but certain functions under that Act that in England and Wales are carried out by the Secretary of State have been devolved to the Scottish Executive Minister. Therefore, we have what is called Executive devolution. Executive Ministers can act and make judgments and issue regulations and so forth, as the Secretary of State can at Westminster, but they cannot change the legislation, which is why we are doing that.

On the future of power station construction—hydroelectric, nuclear, or whatever—the overall energy policy framework for the UK is, of course, reserved to Westminster, which is why the energy review will be carried out by the Department of Trade and Industry. However, the Scottish Executive and Parliament have significant powers over issues to do with planning and, as we have seen, on water. I want to make one thing absolutely clear, as I have done all along. There is no question of Westminster foisting on to the Scottish Executive any new power station if it does not want it, because it has powers under the Electricity Act that it is perfectly free to exercise.

Mr. Ellwood: The Minister is clarifying this issue, but is he saying that the Scottish Executive has a veto over what could be proposed by Westminster?

David Cairns: Effectively, yes. They have a veto because they have powers under the Electricity Act that have been executively devolved to them, and they have powers over planning and land use in general. We have made it clear—my right hon. Friend the Prime Minister did so some years ago, and I have repeatedly done so—that that is the situation. During the energy review, what we all must do, north and south of the border, is come up with a coherent set of policies that actually delivers on the key challenge we currently face: how can we provide for the energy our country needs without wrecking the planet in the process? That is a collaborative venture. However, in terms of planning and powers under the Electricity Act, I have been clear all along that it is not the case that Westminster will be foisting any sort of power station, nuclear or otherwise, on Scotland.

Mr. Ellwood: The Minister has been very generous in terms of giving way. I am sorry to press this issue, but I wish something to be clarified for the record. There have been some recent polls on the future direction of power in general—they have been mentioned in various Scottish newspapers. Is the Minister saying that, should the Scottish Executive
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decide against nuclear energy or any wind turbines—or, indeed, any power stations at all—they will be able to say no to Westminster, and therefore that that will not happen?

David Cairns: They will not be saying no to Westminster, because it will not be Westminster that puts in place new wind turbines or a new hydroelectric power station—or even a new nuclear one.

Mr. Ellwood: The policy?

David Cairns: The policy framework is about whether we are going to have a fiscal regime, and a broader energy regime across the country, that looks into renewable energies, nuclear power and so forth. That is the policy framework. Obviously, it is for the private sector to come forward with particular plans for turbines, hydro dams or power stations in any particular location. However, the policy is entirely clear, and we have gone to great lengths to ensure that everyone understands it. In relation to planning matters, the power resides with the Scottish Executive to grant or refuse any such planning applications. That is clear.

The hon. Member for East Dunbartonshire asked where responsibility lies. First, let me say that we anticipate that this will apply only to a very small number of people. These are the figures in respect of how many prisoners were transferred north to south in the last year that figures are available for: 30-something went south and 20-something came north. Those figures are for all prisoners, let alone the ones in the category we are discussing. Therefore, the numbers are small.

If someone is in prison in Scotland and wants to be released to England, it is preferable that they are transferred as a prisoner to an English prison so that they can meet the necessary social workers and go through all of the plans that people go through when they are re-entering the community. That is more so the case with sex offenders who have to go on the sex offenders register. When released, in which ever jurisdiction, they will come under the auspices of that jurisdiction—Scotland will be managed in Scotland, and England will be managed in England. If they break the terms of their licence, they will be apprehended, and if necessary, taken into custody where they are, and then transferred back to the jurisdiction from where they came in the first place.

The day-to-day management of people who are behaving themselves under the terms of their order or curfew falls to the country in which they are living. However, if they break those terms, they will be transferred back to where they were in custody.

Jo Swinson: I understand that it would be ideal if the prisoner was transferred before release, but what would happen if somebody made that move shortly after being released? Would the licence be transferred?

David Cairns: Yes. That is my understanding of what happens, although we anticipate that that will apply to barely a handful of the people each year.

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I do not want to get into the matter in too much detail because the policy has been decided by the Scottish Parliament, but, clearly, it is in the interest of public safety that we have additional checks for sex offenders that do not apply to people who have been released having committed other crimes that have led to them being in prison for four years. In England, the system already applies those. It is a question of aligning those more closely. I hope that that covers the first order.

The new regime will not make a particular difference to the second order regarding the person who is ultimately responsible for the patient. The old attitude of pharmacists is that they give out pills. We all know that pharmacists study for years—they are highly skilled and qualified individuals who can do an awful lot more than simply dispense medicine. The old remuneration system and contracts were geared towards that, but now pharmacists do a range of other things—helping people with chronic conditions, minor ailments, and so on—which, professionally, is more rewarding for them.

It also helps to ease the pressure on general practitioners where otherwise people would go with those issues. The new contract and service regime that is in place better reflects all of that. The order will simply replace the old regime, where it is referred to in the pieces of legislation outlined in the instrument, with the new regime. The patients hopefully will see better service from their pharmacists which obviously will help the pressure on general practitioners.

The hon. Member for East Dunbartonshire mentioned the operation of the Scottish Environment Protection Agency. The operation, working and regulation of SEPA, and how it goes about consultation, are matters that have been devolved to the Scottish Parliament. Under section 36 to the Electricity Act 1989, public consultation is required, and that remains the case. [Interruption.] Having said that, I might have inadvertently misled the Committee—the second bit of inspiration that I have had suggests that we should ignore the last one. Apparently, it is not a requirement to consult, but that is routinely done. It is up to the Scottish Ministers to exercise that function as they see fit.

With those explanations, I hope that the Committee with give consent to the instruments.

Question put and agreed to.


    That the Committee has considered the Draft Management of Offenders etc. (Scotland) Act 2005 (Consequential Modifications) Order 2006.

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    That the Committee has considered the draft Smoking, Health And Social Care (Scotland) Act 2005 (Consequential Modifications) (England, Wales And Northern Ireland) Order 2006.—[Mr. Cairns]

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    That the Committee has considered the draft Water Environment and Water Services (Scotland) Act 2003 (Consequential Provisions and Modifications) Order 2006.—[Mr. Cairns.]

Committee rose at six minutes to Three o’clock.


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