SP Paper 590 (Web Only)
53rd Report, 2014 (Session 4)
Legislative Consent Memorandum on the Criminal Justice and Courts Bill
Remit and membership
1. The remit of the Delegated Powers and Law Reform Committee is to consider and report on—
(i) subordinate legislation laid before the Parliament or requiring the consent of the Parliament under section 9 of the Public Bodies Act 2011;
(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.
(g) any Scottish Law Commission Bill as defined in Rule 9.17A.1; and
(h) any draft proposal for a Scottish Law Commission Bill as defined in that Rule.
Nigel Don (Convener)
Stuart McMillan (Deputy Convener)
Committee Clerking Team:
Clerk to the Committee
Legislative Consent Memorandum on the Criminal Justice and Courts Bill
The Committee reports to the Parliament as follows—
1. At its meeting on 30 September 2014, the Committee considered the provisions in the Criminal Justice and Courts Bill (“the Bill”)1 that confer powers to make subordinate legislation on the Scottish Ministers.
2. The Bill was introduced to the House of Commons on 5 February 2014. It makes wide-ranging provision in respect of the justice system in England and Wales, including provision about the treatment of dangerous offenders, the release and recall of prisoners, the powers of courts and tribunals and judicial review. The Bill is currently at report stage in the House of Lords, where further consideration is tabled for 20 October 2014.
3. The Legislative Consent Memorandum (LCM)2 was lodged by the Cabinet Secretary for Justice, Kenny MacAskill MSP, on 18 August 2014. The draft motion is:
“That the Parliament agrees that the relevant provision of the Criminal Justice and Courts Bill, introduced to the House of Commons on 5 February 2014, relating to the amendment of the Rehabilitation of Offenders Act 1974, so far as this matter alters the executive competence of Scottish Ministers, and relating to the activities of officers of the National Crime Agency when those officers are operating in Scotland, should be considered by the UK Parliament.”
4. The LCM was considered by the Committee under Rule 9B.3 of the Parliament’s Standing Orders. Paragraph 6 of Rule 9B.3 provides that where the Bill that is the subject of a legislative consent memorandum contains provisions conferring on the Scottish Ministers powers to make subordinate legislation, the Delegated Powers and Law Reform Committee shall consider and may report to the lead committee on those provisions.
5. Clause 18 of the Bill extends two existing powers of the Scottish Ministers to make subordinate legislation contained in the Rehabilitation of Offenders Act 1974 (“the 1974 Act”).
Clause 18: Alternatives to prosecution: rehabilitation of offenders in Scotland
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: affirmative
6. Clause 18 of the Bill inserts a new paragraph 9 into Schedule 3 of the 1974 Act. The new paragraph 9 provides that the powers conferred on the Scottish Ministers by paragraph 6 of Schedule 3 of the 1974 Act and section 7(4) of that Act as applied by paragraph 8 of Schedule 3, may be exercised to make provision relating to reserved matters and are not subject to the restrictions imposed by section 29(2)(b) or (c) of, or Schedule 4 to, the Scotland Act 1998.
7. Schedule 3 to the 1974 Act was inserted by the Criminal Justice and Licensing (Scotland) Act 2010. It deals with protection from disclosure in relation to ‘spent’ alternatives to prosecution (“ATPs”) in Scotland and, in essence, provides similar protection from disclosure for individuals who have a spent ATP as the 1974 Act already provides for those who have spent convictions.
8. The Secretary of State has power, under sections 4(4) and 7(4) of the 1974 Act, to make an order which has the effect of providing exclusions or exceptions to the general rules against disclosure of convictions set out in sections 4(1)-(3) of the 1974 Act (known as “exclusions and exceptions orders”). The effect of those powers is that spent convictions may, in prescribed circumstances, require to be disclosed. The powers are subject to the affirmative procedure under section 10(2). Paragraph 6 of Schedule 3, and section 7(4) as applied by paragraph 8 of Schedule 3 confer similar powers on the Scottish Ministers (i.e. powers to make exclusion or exceptions orders) in respect of spent ATPs. Those powers are also subject to the affirmative procedure.
9. By virtue of section 53 of the Scotland Act 1998, the order-making powers of the Secretary of State under sections 4(4) and 7(4) of the 1974 Act, insofar as relating to devolved matters, were transferred to the Scottish Ministers on devolution. Insofar as those powers relate to reserved matters, an additional transfer of executive competence in relation to reserved matters was made to the Scottish Ministers by the UK Government under SI 2003/415. The order-making powers under sections 4(4) and 7(4) of the 1974 Act may, therefore, be exercised by the Scottish Ministers in respect of both devolved and reserved matters. This allows, for example, for an exclusion order to be made by the Scottish Ministers in respect of an obligation to disclose a spent conviction where a person applies to work in a reserved profession.
10. The powers conferred on the Scottish Ministers by virtue of Schedule 3 to the 1974 Act which relate to spent ATPs are more limited than those which relate to spent convictions. This is because Schedule 3 was inserted by an Act of the Scottish Parliament, and the Scottish Parliament has competence to legislate only in respect of devolved matters. The Scottish Ministers also have executive competence only in relation to devolved matters therefore in the absence of a transfer of additional executive competence that would confer powers to make exclusion orders regarding spent ATPs in respect of reserved matters, Ministers may make such orders using the enabling powers in Schedule 3 only in relation to devolved matters. There is accordingly an inconsistency between Scottish Ministers’ powers to make exclusion and exception orders in respect of spent convictions, and their powers to make such orders in respect of spent ATPs. The extension of those powers by UK Parliament legislation will confer competence upon the Scottish Ministers to make exclusion and exception orders as regards spent ATPs in connection with reserved matters, thereby resolving that inconsistency.
11. The Committee finds the powers in Schedule 3 of the 1974 Act as amended by clause 18 of the Bill to be acceptable in principle and is content that the powers remain subject to the affirmative procedure.
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