69th Report, 2014 (Session 4): Legislative Consent Memorandum on the Modern Slavery Bill

SP Paper 625 (Web Only)

DPLR/S4/14/R69

69th Report, 2014 (Session 4)

Legislative Consent Memorandum on the Modern Slavery Bill

Remit and membership

Remit:

1. The remit of the Delegated Powers and Law Reform Committee is to consider and report on—
(a) any—
(i) subordinate legislation laid before the Parliament or requiring the consent of the Parliament under section 9 of the Public Bodies Act 2011;
(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.
(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.

Membership:

Richard Baker
Nigel Don (Convener)
John Mason
Margaret McCulloch
Stuart McMillan (Deputy Convener)
John Scott
Stewart Stevenson

Committee Clerking Team:

Clerk to the Committee
Euan Donald

Assistant Clerk
Elizabeth Anderson

Support Manager
Daren Pratt

Legislative Consent Memorandum on the Modern Slavery Bill

The Committee reports to the Parliament as follows—

1. At its meeting on 2 December 2014, the Committee considered the provisions in the Modern Slavery Bill (UK Parliament Legislation) (“the Bill”)1 that confer powers to make subordinate legislation on the Scottish Ministers.

2. The Modern Slavery Bill (“the Bill”) was introduced in the House of Commons by the Home Secretary, Theresa May MP, on 10 June 2014. It consolidates offences in relation to modern slavery and human trafficking; extends the maximum sentence available where a person is convicted of specified slavery and human trafficking offences; creates two new civil court orders (the Slavery and Trafficking Prevention Order and the Slavery and Trafficking Risk Order); and establishes an independent Anti-Slavery Commissioner whose primary functions are to encourage good practice in the prevention, detection, investigation and prosecution of slavery and human trafficking offences; and the identification of victims.

3. On introduction, the Bill did not extend to Scotland. Amendments brought forward on 28 October, however, extended two aspects of the Bill to Scotland therefore this LCM has been prepared by the Scottish Government. The extended provisions relate to enforcement powers on board ships for Scottish constables and enforcement officers and the independent Anti-Slavery Commissioner.

4. The LCM was lodged on 14 November 2014 and the draft motion, to be lodged by the Cabinet Secretary for Justice, is:

“That the Parliament agrees that the relevant provisions of the Modern Slavery Bill, introduced in the House of Commons on 10 June 2014, relating to enforcement powers in relation to ships and the Anti-Slavery Commissioner, so far as these matters fall within the legislative competence of the Scottish Parliament or alter the functions of the Scottish Ministers, should be considered by the UK Parliament.”

5. The Legislative Consent Memorandum2 was considered by the Committee under Rule 9B3.6. The Committee is required to consider, and may report to the lead committee on, any provision in a Bill which is subject to a legislative consent memorandum which confers power on the Scottish Ministers to make subordinate legislation. As with bills passed by the Scottish Parliament, the Committee’s role is to consider 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.

Delegated powers

6. The amendments made to the Bill on 28 October include provision conferring a power on the Scottish Ministers to make subordinate legislation. The Bill also confers a power on the Scottish Ministers to issue directions. Each of these powers is discussed below.

Clause 41 – General functions of Commissioner
Power conferred on: the Scottish Ministers
Power exercisable by: direction
Parliamentary procedure: none

7. Clause 40 of the Bill provides for the appointment of a UK-wide independent Anti-Slavery Commissioner, to be appointed by the Secretary of State after consultation with the Scottish Ministers and the Department of Justice in Northern Ireland. The general functions of the Commissioner, as set out in clause 41, are to encourage good practice in the prevention, detection, investigation and prosecution of slavery and human trafficking offences; and the identification of victims (“slavery and human trafficking offences” are defined by reference to offence provisions in the Bill, the Sexual Offences Act 2003, the Criminal Justice (Scotland) Act 2003, the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, the Coroners and Justice Act 2009 and the Criminal Justice and Licensing (Scotland) Act 2010).

8. In exercise of the functions conferred by the Bill, the Commissioner is empowered to make reports on any permitted matter to the Secretary of State, the Scottish Ministers and the Department of Justice in Northern Ireland. The Commissioner may also make recommendations to any public authority about the exercise of its functions; may undertake or support the carrying out of research; may provide information, education or training; may consult people; and may co-operate with or work jointly with other persons in the UK or elsewhere.

9. Clause 41(7) of the Bill provides that the Scottish Ministers may direct the Commissioner to omit from any report before publication any material whose publication the Scottish Ministers think might jeopardise the safety of any person in Scotland, or might prejudice the investigation or prosecution of an offence under the law of Scotland. A similar power of direction is conferred upon the Secretary of State (Clause 41(6)) and the Department of Justice in Northern Ireland (Clause 41(8)).

10. The Committee is content with the power to issue directions in Clause 41(7) of the Bill.

Clause 43 – Duty to co-operate with Commissioner
Power conferred on: the Scottish Ministers
Power exercisable by: regulations
Parliamentary Procedure: negative

11. Clause 43(1) provides that the Commissioner may request a specified public authority to co-operate with the Commissioner in any way that the Commissioner considers necessary for the purposes of the Commissioner’s functions. A public authority must comply with a request made under clause 43(1) to the extent that it is reasonably practicable to do so.

12. Clause 43(5) provides that “specified public authority” means, for the purposes of clause 43, a public authority which is specified in, or is of a description specified in, regulations made for the purposes of that section. Clause 43(6) provides that the power to make regulations under subsection (5) is exercisable, in relation to a public authority having only functions which are exercisable in or as regards Scotland, by the Scottish Ministers. Clause 54(5) provides that such regulations are subject to the negative procedure. The power enables the Scottish Ministers to set out in regulations public authorities or descriptions of public authorities to which a request may be made by the Commissioner.

13. The Committee finds the power in clause 43 of the Bill, insofar as it permits regulations to be made by the Scottish Ministers, to be acceptable in principle, and is content that it is subject to the negative procedure.


Any links to external websites in this report were working correctly at the time of publication. However, the Scottish Parliament cannot accept responsibility for content on external websites

Footnotes:

1 Modern Slavery Bill available here: http://services.parliament.uk/bills/2014-15/modernslavery.html

2 Modern Slavery Bill Legislative Consent Memorandum available here: http://www.scottish.parliament.uk/LegislativeConsentMemoranda/ModernSlaveryBillLCM.pdf

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