6th Report, 2015 (Session 4): European Protection Order (Scotland) Regulations 2015

SP Paper 682 (Web only)

Remit and Membership

Remit:

To consider and report on:
a) the administration of criminal and civil justice, community safety and other matters falling within the responsibility of the Cabinet Secretary for Justice; and
b) the functions of the Lord Advocate other than as head of the systems of criminal prosecution and investigation of deaths in Scotland.

Membership:

Christian Allard
Jayne Baxter
Roderick Campbell
John Finnie
Christine Grahame (Convener)
Alison McInnes
Margaret Mitchell
Elaine Murray (Deputy Convener)
Gil Paterson

Committee Clerking Team:

Joanne Clinton
Neil Stewart
Christine Lambourne

European Protection Order (Scotland) Regulations 2015

The Committee reports to the Parliament as follows—

1. At its meeting on 24 February 2015 the Committee considered the following instrument—

European Protection Order (Scotland) Regulations 2015 [draft]

2. The instrument was referred to the Justice Committee as lead committee and was subject to affirmative procedure. The Minister for Community Safety and Legal Affairs, Paul Wheelhouse, gave evidence on the instrument and also moved the relevant motion recommending approval of the instrument

European Protection Order (Scotland) Regulations 2015 [draft]

The draft instrument

3. The draft Regulations were laid under section 2(2) of the European Communities Act 1972 and all other relevant enabling powers. The instrument transposes into domestic law the requirements of Directive 2011/99/EU, allowing individuals to apply for a European Protection Order (EPO)1 where they would benefit from a protection measure and intend to move elsewhere in the EU. It would also extend protection to those in a similar situation who are moving to Scotland. In order to achieve this in part, the Regulations insert five new sections into the Criminal Procedure (Scotland) Act 1995:

  • conferring upon the court (the competent authority) powers to recognise and implement incoming EPOs;
  • conferring upon the court (the competent authority) powers to issue outgoing EPOs
  • setting out the circumstances in which an EPO can be issued by the court;
  • setting out the grounds on which the court can refuse to recognise an EPO;
  • providing a power to modify or revoke a section 254D non-harassment order; and
  • including the definitions referred to in Article 22 of the Directive.

4. The policy note states that criminal court rules, setting out the administrative and procedural aspects for issuing and implementing EPOs, will also be required.

5. Directive 2011/99/EU relates solely to criminal matters. The Scottish Government has transposed a parallel Regulation on civil matters (EU Regulation 606/2013) through SSI 2014/333, which was considered by the Committee at its meeting on 16 December 2014.

Scrutiny by the Delegated Powers and Law Reform Committee

6. The Delegated Powers and Law Reform Committee considered the instrument at its meeting on 17 February 2015 and agreed that it did not need to draw the attention of the Parliament to it on any grounds within its remit.3

Justice Committee consideration

7. The draft Regulations were considered by the Justice Committee on 24 February 2015, when it took evidence from Paul Wheelhouse, Minister for Community Safety and Legal Affairs.4

8. In his opening remarks the Minister stated that the general objective of the Directive is to provide for protection measures issued in one EU country to be recognised across the entire EU. Mr Wheelhouse went on to explain that, when the Regulations were laid initially in December 2014, doubt arose regarding the criminal penalty that could be applied using section 2(2) of the European Communities Act 1972. However, he said that, as no applications affecting Scotland had been received to date, he was confident that there would be no consequences arising from the delay in introducing and implementing the measures.

9. In response to a question about the financial implications for the Scottish Court Service, the Minister reassured the Committee that, while it is difficult to predict exact volumes of EPOs, he did not anticipate a huge number of cases that would impact on the Scottish Courts.

10. The Minister also clarified that if, under the Regulations, an EPO made in another country was passed to Scotland, Scottish authorities would impose a non-harassment order which, if breached in Scotland, would be punishable under Scots law. Similarly, if an EPO was made in Scotland and transferred to another country, it would be enforced in that country through its own restraining order.

11. Mr Wheelhouse then moved the motion lodged in his name: S4M-12361—That the Justice Committee recommends that the European Protection Order (Scotland) Regulations 2015 [draft] be approved.

12. The motion was agreed to.

13. The Justice Committee therefore recommends to the Parliament that it approve the draft instrument.


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 The Regulations define an EPO as a decision in relation to a protection measure taken by a competent authority in an EU member state and on the basis of which the competent authority of another EU member state may take any appropriate measure or measures under its own national law with a view to continuing the protection of protected persons. In Scotland, the competent authority will be the courts.

2 The definitions in Article 2 can be found in the Directive at: http://ec.europa.eu/justice/criminal/files/directive_2011_99_on_epo_en.pdf

3 Scottish Parliament Delegated Powers and Law Reform Committee. 12th Report, 2015 (Session 4). Subordinate Legislation. Available at: http://www.scottish.parliament.uk/S4_SubordinateLegislationCommittee/Reports/sur15-12w.pdf

4 Scottish Parliament Justice Committee. Official Report, 24 February 2015. Available at: http://www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=9796&mode=pdf

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