Draft Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2011
The Committee consisted of the following Members:
† Banks, Gordon (Ochil and South Perthshire) (Lab)
† Cairns, Alun (Vale of Glamorgan) (Con)
Crockart, Mike (Edinburgh West) (LD)
† Donohoe, Mr Brian H. (Central Ayrshire) (Lab)
† Dunne, Mr Philip (Ludlow) (Con)
† Eustice, George (Camborne and Redruth) (Con)
† Glen, John (Salisbury) (Con)
† Greatrex, Tom (Rutherglen and Hamilton West) (Lab/Co-op)
† Gyimah, Mr Sam (East Surrey) (Con)
† Hamilton, Mr David (Midlothian) (Lab)
Kwarteng, Kwasi (Spelthorne) (Con)
† McKenzie, Mr Iain (Inverclyde) (Lab)
McGovern, Jim (Dundee West) (Lab)
† Mundell, David (Parliamentary Under-Secretary of State for Scotland)
† Nuttall, Mr David (Bury North) (Con)
† Reid, Mr Alan (Argyll and Bute) (LD)
† Roy, Mr Frank (Motherwell and Wishaw) (Lab)
Wishart, Pete (Perth and North Perthshire) (SNP)
Judith Boyce, Committee Clerk
† attended the Committee
Third Delegated Legislation Committee
Tuesday 12 July 2011
[Nadine Dorries in the Chair]
Draft Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2011
10.30 am
The Parliamentary Under-Secretary of State for Scotland (David Mundell): I beg to move,
That the Committee has considered the draft Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2011.
It is a particular pleasure to serve under your chairmanship, Ms Dorries. You take a keen interest in matters Scottish, and I particularly enjoyed your appearance on “Question Time” from Lochgelly in the past. I particularly welcome the hon. Member for Inverclyde to the Committee and congratulate him on his election to Parliament. Of course, his predecessor stood in the position that I am occupying on many occasions to move motions on such orders, and he is still much missed.
I suggest that the draft order, which was laid before the House on 22 June, be approved. I propose to provide the Committee with an explanation of what the draft order seeks to achieve. It is made under section 104 of the Scotland Act 1998, which allows for necessary or expedient changes to UK legislation in consequence of an Act of the Scottish Parliament. It is made in consequence of the Criminal Justice and Licensing (Scotland) Act 2010.
The 2010 Act makes a number of changes to the law, and the draft order relates to some of the changes made to sentencing, criminal procedure, criminal law and criminal justice. The 2010 Act introduced a new community sentence in Scotland, known as the community payback order. The draft order will enable the transfer of community payback orders imposed by a court in Scotland to England and Wales or Northern Ireland if an offender resides or intends to reside there.
The draft order provides for the transfer of community payback orders in situations where an order is already in place and an offender subsequently proposes to move or has moved to England and Wales. It will allow the court to impose a community payback order on an offender who resides or will reside in England and Wales. In both scenarios, the court must not impose an order unless the offender is aged 16 or older. The court must be satisfied that arrangements have been or can be made for the offender to comply with the requirements imposed by the order in accordance with arrangements that exist in the relevant area for offenders. The court must also be satisfied that either a responsible officer will be appointed or that the offender will be supervised by a relevant probation service.
The analogous order to a Scottish community payback order in England and Wales is the community order or, for offenders aged between 16 and 18, the youth rehabilitation order. When transferred, the community
payback order has effect in England and Wales as though it were a community order made by a court there.The draft order contains almost identical provision for the cross-border transfer of the community payback order in relation to offenders who reside or will reside in Northern Ireland with a number of necessary modifications. In Northern Ireland, the corresponding order to the Scottish community payback order will be a probation order or community service order under the Criminal Justice (Northern Ireland) Order 1996.
The 2010 Act also sets out what use can be made of various sources of forensic data about individuals who are arrested or detained under suspicion of having committed an offence. The draft order will allow forensic data, as well as such data taken from terrorist suspects, to be used for the reserved purpose of national security and for the purposes of a terrorist investigation. The provisions will also allow forensic data taken for reserved purposes to be used for specific devolved purposes. The provisions are a valuable tool for the prevention and detection of crime in Scotland.
The 2010 Act also ensures that a person will be made subject to the sex offender notification requirements when they are convicted of the offence of possession of extreme pornography. The draft order will extend that provision as a matter of law in England, Wales and Northern Ireland, thus ensuring that a person made subject to the notification requirements as a result of conviction for possession of extreme pornography in Scotland cannot evade the requirement to register by moving elsewhere in the UK.
The 2010 Act makes a number of improvements to the operation of foreign travel orders. The draft order will extend the Scottish offence of breaching the requirement to surrender passports under a foreign travel order to England, Wales and Northern Ireland. That is a sensible measure, given the increased mobility of offenders who try to avoid their obligations by leaving one jurisdiction for another and the growing international concern about sex tourism.
The Committee might wish to note that, in addition to the draft order, it is proposed that another section 104 order will be made by the Scotland Office further to the Criminal Justice and Licensing (Scotland) Act 2010, to address other parts of the Act that require changes to be made to Westminster legislation.
The draft order demonstrates the Government’s continuing commitment to working with the Scottish Government to make the devolution settlement work. I hope that the Committee agrees that the draft order is a sensible use of the powers in the Scotland Act 1998 and that the practical results will be welcome. I commend the draft order to the Committee.
10.36 am
Tom Greatrex (Rutherglen and Hamilton West) (Lab/Co-op): It is a pleasure to serve under your chairmanship for the first time, Ms Dorries. It is also a pleasure to be here again in Scotland Office order fortnight—we wait for months, then three or four come along at once.
Mr Brian H. Donohoe (Central Ayrshire) (Lab): Like buses.
Tom Greatrex: Indeed; I am not sure what kind of bus.
It is also a pleasure to welcome my hon. Friend the Member for Inverclyde to the Committee to consider a Scotland Office order for the first time. I am sure that he will get to enjoy such occasions as much as everybody else. I got to know his constituency in Port Glasgow rather well in recent weeks, but it was a pleasure to be there this weekend for the tall ships—a great event to have in Greenock and in Scotland—without knocking on anyone’s door to ask how they would vote.
The Minister has explained the content of the draft order and its relationship to the 2010 Act passed in Holyrood. As he said, since the Criminal Justice Act 2003, and the Criminal Justice Act 1982, there have been arrangements for the transfer of community orders from England and Wales, or Northern Ireland, to Scotland. The new community payback order in Scotland will now be able to be transferred where people cross jurisdictions, and will be treated as the equivalent of the English and Welsh community order. As members of the Committee will be aware, Scotland has always had a separate legal system and separate justice arrangements, so the measure is perfectly sensible and consistent with having different legal systems within our one state.
On transfer of forensic data, the Minister will be acutely aware that there are always concerns about the transfer of data and the potential for, if not abuse, carelessness with data as it is transferred. Although the draft order allows for transfer in relation to reserved responsibilities, such as national security and prevention of terrorism, and for data taken for reserved purposes to be used for devolved purposes, it is important to have clarity about the operational arrangements to ensure the safety and integrity of the data. Will the Minister explain further how operational guidance will be provided to the police and other agencies—primarily the Serious Organised Crime Agency and Her Majesty’s Revenue and Customs—to ensure a consistency of approach in that regard? The explanatory memorandum, in paragraph 9.2, suggests that the measures within the draft order
“are broadly devolved and so guidance on the working of the 2010 Act is a matter”
for the devolved Administration in Holyrood. What role are SOCA, HMRC and the Home Office taking in the preparation of that guidance, given that the measures described in the order are not just for the justice department in Edinburgh to deal with? Will the Minister provide assurances about that process, because dealing with sensitive information and data sharing will have an impact on UK-wide bodies and on local policing in Scotland? There should be no misapprehension about
the processes that need to be followed, so it is important that the guidance focuses on both elements of the potential data transfer, and that the provision is not simply left to those whose primary interest is in local policing north of the border.I understand that the relevant section of the devolved legislation will not commence until 1 August, alongside the provisions in the draft order if passed, and I welcome that consistency, as such orders sometimes have to play catch-up. In anticipation of the draft order being passed, will the Minister say whether operational guidance has been prepared or will be prepared over the next couple of weeks? Is he convinced that there is enough time for such guidance to be drafted and disseminated so that people understand their obligations under the new measures?
I also note the perfectly sensible provision to ensure that sex offenders are unable, simply by moving to another part of the UK, to avoid their obligations, under the new Scottish offence, to surrender their passports. That catches up with the changes introduced under the Policing and Crime Act 2009 for the rest of the UK, and we support that.
10.40 am
David Mundell: First, I assure the hon. Gentleman that the seriousness of forensic data collection is recognised by authorities north and south of the border. I also assure him that agencies north and south of border are working together in relation to the determination of the appropriate guidelines for the operation of such arrangements. I will write to him and keep him updated on the finalisation of those arrangements. SOCA, which he mentioned, and the other agencies involved have worked well together, and they have taken on board the need for the guidance to be in place and to be understandable on both sides of the border.
We will also write to the hon. Gentleman with details of the foreign travel orders guidance, but my understanding is that it will be available in good time.
Mr Frank Roy (Motherwell and Wishaw) (Lab): May I ask the Minister to write to every member of the Committee with that information?
David Mundell: I am happy to accede to the hon. Gentleman’s request, in respect of both the foreign travel orders and the forensic data transfer orders.