35th Report, 2012 (Session 4): Legislative Consent Memorandum on the Crime and Courts Bill

SP Paper 163 (Web Only)

SL/S4/12/R35

35th Report, 2012 (Session 4)

Legislative Consent Memorandum on the Crime and Courts Bill

Remit and membership

Remit:

The remit of the Subordinate Legislation Committee is to consider and report on—

(a) any—

(i) subordinate legislation laid before the Parliament;

(ii) [deleted]

(iii) pension or grants motion as described in Rule 8.11A.1;

and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;

(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;

(c) general questions relating to powers to make subordinate legislation;

(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation;

(e) any failure to lay an instrument in accordance with section 28(2), 30(2) or 31 of the 2010 Act; and

(f) proposed changes to the procedure to which subordinate legislation laid before the Parliament is subject.

(Standing Orders of the Scottish Parliament, Rule 6.11)

Membership:

Chic Brodie
Nigel Don (Convener)
James Dornan (Deputy Convener)
Mike MacKenzie
Michael McMahon
John Pentland
John Scott

Committee Clerking Team:

Clerk to the Committee
Irene Fleming

Assistant Clerk
Rob Littlejohn

Support Manager
Daren Pratt

Legislative Consent Memorandum on the Crime and Courts Bill

The Committee reports to the Parliament as follows—

1. At its meeting on 12 June 2012, the Committee considered the provisions in the Crime and Courts Bill1 (“the Bill”) that confer on the Scottish Ministers powers to make subordinate legislation.

2. A Legislative Consent Memorandum (“LCM”)2 has been lodged in relation to the Bill. The draft of the motion lodged by the Cabinet Secretary for Justice is:

“That the Parliament agrees that the relevant provisions of the Crime and Courts Bill, introduced in the House of Lords on 10 May 2012, relating to the establishment of the National Crime Agency; provisions for a new drug-driving offence; and to allow those detained in Scotland by immigration officers to be able to access legal advice on the same terms as those detained by police officers; so far as these matters fall within the legislative competence of the Scottish Parliament or alter the functions of Scottish Ministers, should be considered by the UK Parliament.”

3. Under rule 9B.3.6 of Standing Orders, where the Bill that is the subject of an LCM contains provisions that confer on the Scottish Ministers powers to make subordinate legislation, the Subordinate Legislation Committee shall consider and may report to the lead committee on those provisions.

4. As with bills passed by the Scottish Parliament, the Committee considered whether it is appropriate in principle for the power to be delegated to the Scottish Ministers, whether the terms of the power are appropriately drawn and whether the level of scrutiny applied to the exercise of the power is appropriate.

5. A Delegated Powers Memorandum for the full Bill is also available on the United Kingdom Parliament website3.

Crime and Courts Bill

6. The Crime and Courts Bill is a substantial Bill of 31 sections and 16 detailed Schedules. It provides for the establishment of the National Crime Agency ("NCA") as a replacement for the Serious Organised Crime Agency and the National Policing Improvement Agency, and their consequent abolition. It also makes provision for the restructuring of the county courts, the establishment of a family court and the deployment of the judiciary in England and Wales. It further makes miscellaneous provision about immigration, and creates a new offence in relation to driving after having consumed controlled drugs.

7. The Bill delegates three powers to the Scottish Ministers.

8. Clause 27 inserts a new section 5A into the Road Traffic Act 1988 (“the 1988 Act”), and section 5A(8) enables the Scottish Ministers – in relation to Scotland – to specify the limits for and the controlled drugs which will trigger the new offence. The equivalent power for England and Wales is conferred on the Secretary of State.

9. Secondly, paragraph 27 of Schedule 5 confers a power on the Scottish Ministers to make further provision in consequence of the Director General of the NCA having the same powers in relation to customs matters as the Commissioners for Her Majesty’s Revenue and Customs have, or in consequence of designated NCA officers having operational powers (including the powers and privileges of a constable).

10. Finally, paragraph 28 of Schedule 5 confers a further power on the Scottish Ministers, in this case to provide for the functions of third parties towards constables, police forces, officers of Revenue and Customs, the HMRC Commissioners or immigration officers to be extended to the NCA.

11. Although the power in clause 27 is dealt with in the LCM, the two powers in Schedule 5 are not. The Committee notes that the DPM provided by the Home Office and the Ministry of Justice to the UK Parliament provides further information on these powers, but considers that it would have been helpful if the LCM had addressed these provisions, in particular in relation to their exercise in the devolved context.

Powers to make subordinate legislation

Clause 27: Drugs and driving (inserts new section 5A of the Road Traffic Act 1988)

12. Clause 27 inserts a new section 5A (Driving or being in charge of a motor vehicle with concentration of specified controlled drug above specified limit) into the 1988 Act. Section 5A creates offences of driving or attempting to drive a motor vehicle, or being in charge of a motor vehicle while having in one’s body a specified controlled drug in excess of the specified limit for that drug. “Controlled drug” has the same meaning as in the Misuse of Drugs Act 1971. The offences only apply to specified controlled drugs, and then only when the proportion of that drug in blood or urine exceeds the specified limit for that drug.

13. Section 5A(8) contains a definition of “specified”. It means specified in regulations which are made by the Secretary of State (in England and Wales), and by the Scottish Ministers (in Scotland). Accordingly, section 5A of the 1988 Act, as inserted by clause 27, confers power on the Scottish Ministers to specify the controlled drugs to which the section 5A offences will apply in Scotland, and to specify the limits for each drug so specified.

14. The Committee observes that the offence created in section 5A is analogous to the drink-driving offences presently contained in the 1988 Act. It observes that this provision appears to be intended to give the Scottish Ministers similar powers in relation to drug-driving offences as they will have in relation to drink-driving offences when section 20 of the Scotland Act 2012 is brought into force. The Committee considers delegation of this power to be acceptable in principle.

15. The Committee also takes the view that regulations made under this power are of a substantive and significant nature, as they will specify the controlled drugs to which these new offences applies, and the limits in relation to each of those drugs. It accordingly agrees that the affirmative procedure is appropriate.

16. The Committee therefore reports that it considers this power to be acceptable in principle, and that it is content that it is subject to the affirmative procedure.

Schedule 5, paragraph 27: Power to make further provision

17. Paragraph 27 of Schedule 5 confers a power on the “relevant national authority” to make such further provision as it considers appropriate in consequence of the director general of the NCA having the same powers in relation to customs matters as the Commissioners for Her Majesty’s Revenue and Customs (“the HMRC Commissioners”) have, or in consequence of designated NCA officers having operational powers (including the powers and privileges of constable).

18. Paragraph 30 defines the “relevant national authority” as being the Scottish Ministers in relation to Scottish devolved provision, and “Scottish devolved provision” is defined as provision that would be within the legislative competence of the Scottish Parliament. There is, however, an exception in relation to provision providing for a class of NCA officers to be treated as the equivalent to one or more ranks, grades or pay scales in a UK police force, the Revenue and Customs or immigration officers. Accordingly, the Scottish Ministers may not make provision under paragraph 27 for those purposes, even if the matter would otherwise be within devolved competence.

19. The Scottish Ministers have failed to address this power specifically in their LCM. Schedule 5 in general is discussed on page 9, but that discussion does not appear to touch on this power. On the whole, it appears to the Committee that Schedule 5 provides for the extension of the powers of other law enforcement agencies to the NCA (for example, the powers in relation to customs matters enjoyed by the HMRC Commissioners). An “operational power” is any power or privilege of a constable, a power of an officer of Revenue and Customs, or a power of an immigration officer.

20. If these powers are to be extended to NCA officers or its director general, the Committee can in principle see why it might be necessary to make consequential provision as to how that extension is to work. As an example, the Home Office and the Ministry of Justice, in the Delegated Powers Memorandum which they provided to the UK Parliament, refer to the need for certain forms of surveillance under the Regulation of Investigatory Powers Act 2000 to be authorised by a police officer of at least the rank of superintendent. They indicate that this provision would need to be modified so that NCA officers of equivalent seniority could also provide authorisation. The Committee can envisage similar consequential provision being required within devolved competence, particularly should NCA officers have conferred on them any power or privilege of a Scottish constable.

21. The Committee considers that it would have aided its scrutiny had the Scottish Ministers explained why they considered it appropriate to take the power within that devolved context, and that it would have been helpful had the Ministers indicated how they might use it. However, it takes the view that the power itself is not exceptionable, and it appears to be reasonable to take such a power to make consequential provision when it is not clear (and may not be for some time) exactly which operational powers are to be extended to NCA officers. The Committee considers that, were the power not granted, there would be a risk that existing powers could not be extended to NCA officers without some form of adjustment which would then require further primary legislation. The Committee accordingly finds this power acceptable in principle.

22. An order made by the Scottish Ministers under this power is to be subject to the affirmative procedure if it amends or repeals any provision of primary legislation, and is otherwise subject to the negative procedure. The Committee notes that this reflects the fact that this power enables the Ministers, within devolved competence, to amend primary legislation including Acts of Parliament and Acts of the Scottish Parliament.

23. The Committee therefore reports that it considers this power to be acceptable in principle, and that it is content that it is subject to the affirmative procedure when used to amend or repeal primary legislation, and otherwise to the negative procedure.

Schedule 5, paragraph 28: Functions of third parties relating to constables etc: extension to NCA

24. Paragraph 28 of Schedule 5 confers a further power on the relevant national authority, in this case to provide for the functions of third parties towards constables, police forces, officers of Revenue and Customs, the HMRC Commissioners or immigration officers to be extended to the NCA too. As before, the Scottish Ministers are the relevant national authority in relation to Scottish devolved provision.

25. Again, this power is not addressed in the LCM. As before, it appears to be connected to the general extension of powers to the NCA, although the emphasis here is different as this concerns the functions of third parties exercisable in relation to one of the specified law enforcement agencies. The Committee has been able to derive some assistance on the purpose of this power from the DPM prepared by the Home Office and the Ministry of Justice. It indicates that third parties may have functions as regards the HMRC Commissioners, constables, officers of Revenue and Customs or immigration officers, and that these functions are distinct from the powers dealt with by paragraph 27. By way of example, the DPM cites section 106(1) of the Postal Services Act 2000, which allows a postal operator to detain a postal packet suspected of containing contraband and to forward it to the HMRC Commissioners (who may then exercise various powers of their own in relation to it).

26. The Committee can see that circumstances could arise where it would be desirable that functions of a third party should be exercisable as regards the NCA in the same way that they are currently exercisable as regards other law enforcement agencies. Were an order-making power not taken, it appears that further primary legislation would be required and this is not considered to be a good use of parliamentary resources, particularly as the intention appears to be that the extension of functions should be exercised on a case-by-case basis.

27. The Committee considers that it would have aided its scrutiny had the Scottish Ministers explained why they considered it appropriate to take the power within a devolved context, and that it would have been helpful had the Ministers indicated how they might use it. However, on the information available via the DPM provided to the UK Parliament, the Committee considers that similar considerations might apply in the devolved context. The Committee accordingly finds this power acceptable in principle.

28. An order made by the Scottish Ministers under this power is to be subject to the affirmative procedure if it amends or repeals any provision of primary legislation, and is otherwise subject to the negative procedure. Again, the Committee is content that this is appropriate.

29. The Committee therefore reports that it considers this power to be acceptable in principle, and that it is content that it is subject to the affirmative procedure when used to amend or repeal primary legislation, and otherwise to the negative procedure.

30. As the Committee has noted, the LCM contains no information regarding the powers delegated to the Scottish Ministers by paragraphs 27 and 28 of Schedule 5. It considers that its scrutiny would have been aided had the Scottish Ministers addressed these powers in their LCM. Accordingly, it draws this matter to the attention of the lead committee.


Footnotes:

1 The latest version of the Bill is available at:
http://services.parliament.uk/bills/2012-13/crimeandcourts.html

2 LCM on the Crime and Courts Bill. Available at:
http://www.scottish.parliament.uk/LegislativeConsentMemoranda/CrimeandCourtsBillLCM.pdf

3 DPM on the Crime and Courts Bill. Available at:
http://www.parliament.uk/documents/DPRR/2012-13/Crime%20and%20Courts%20Bill%20%5bHL%7d/Delegated-Powers-Memo-11-05-12.doc

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