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SL/S2/07/R19

19th Report, 2007 (Session 2)

Remit and membership  

Remit:

1. The remit of the Subordinate Legislation Committee is to consider and report on-

(a) any-

(i) subordinate legislation laid before the Parliament;

(ii) Scottish Statutory Instrument not laid before the Parliament but classified as general according to its subject matter,

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; and

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

 (Standing Orders of the Scottish Parliament, Rule 6.11)

Membership:

Dr Sylvia Jackson (Convener)
Janis Hughes
Mr Adam Ingram
Mr Kenneth Macintosh (Deputy Convener)
Mr Stewart Maxwell
Euan Robson
Murray Tosh

Committee Clerking Team:

Clerk to the Committee
Ruth Cooper

Senior Assistant Clerk
David McLaren

Assistant Clerk
Jake Thomas

Support Manager
Andrew Proudfoot

Custodial Sentences and weapons (Scotland) Bill as amended at Stage 2

The Committee reports to the Parliament as follows— 

1. At its meetings on 6 and 13 March 2007, the Committee considered the inserted or substantially amended delegated powers provisions in the Custodial Sentences and Weapons (Scotland) Bill as amended at Stage 2. The Committee reports to the Parliament on such provisions under Rule 9.7.9 of Standing Orders.

2. Under Rule 9.7.10, the Executive provided the Parliament with a supplementary delegated powers memorandum1.

3. The Committee took evidence from Executive officials at its meeting on 6 March 20072.

4. Further correspondence between the Committee and the Executive is attached in the Annex.

Delegated powers

5. The Committee considered all of the powers as set out in the Supplementary DPM and is content with sections: 6(1) and 43 (which inserts new section 27A(2A) into the Civic Government (Scotland) Act 1982).

Section 4(2) – power to amend definitions of “custody and community sentence” and “custody –only” sentences

6. The Executive previously justified the need for this power on the basis that post-implementation evaluation might show that custody and community sentences are more effective for longer than 15 days; that any exercise of the power would be evidence based; and that it enables the demarcation point to be changed in response to trends. The Executive undertook at Stage 1 to review the power with a view to limiting how far the demarcation point could be shifted. It explained to the Committee at Stage 1 that the power could be narrowed without losing the desired effect of flexibility.

7. The Committee was concerned to note that the power was not amended at Stage 2 and asked the Executive to explain what consideration it gave to imposing a limit on the power to alter the demarcation point between “custody and community” and “custody only” sentences; and why it had opted not to impose such a limit.

8. In its oral evidence (col.2358-59), the Executive explained that it had looked at the demarcation point and came to the view that 15 days is the shortest possible period within which the necessary arrangements for risk and needs assessment could be put in place, and the conditions for the community part of the licence could be set for a prisoner on release. It was therefore content with the power as it stands, without any threshold, because it needs to be able to change its policy in line with different future trends.

9. The Committee acknowledged that the Executive’s case was a policy one but with implications for subordinate legislation. It had expressed its own view but accepted that the Executive had taken a different view.

10. The Committee is content with the power and that it is subject to affirmative procedure.

Section 6B – power to alter the proportion of sentence forming the “custody part” (previously section 6(10))

11. This is a new power introduced at Stage 2 which is substantially the same as the power in deleted section 6(10), which the Committee considered at Stage 1.

12. At Stage 1, the Committee was concerned about the wide Henry VIII power in section 6(10) which was subject only to negative procedure, and that there was some ambiguity about the extent of the power as it could be subject to 2 interpretations – namely that the power is implicitly restricted or alternatively, an express restriction could have been added and as this was not done, no restriction was intended. Accordingly, the extremity of the power was unclear.

13. However, the Committee considered the power was at the boundary of what was appropriate by way of delegated legislation, but that the ambiguity related to a significant power.

14. The Committee asked the lead committee to examine the ambiguity. It also recommended that the power should be made subject to affirmative procedure.

15. In its response, the Executive provided an explanation for the power and undertook to make it subject to affirmative procedure. The Executive also repeated in its letter of 8th January to the lead committee that it is not its intention ever to vary the “default” period to greater than 75% of sentence.

16. The Executive lodged an amendment at Stage 3 to make the power subject to affirmative procedure.

17. The Committee is content with the power and with the lodged Executive amendment to make it subject to affirmative procedure. It also considers that, due to the enhanced level of scrutiny, no substantive risk will arise in practice from the ambiguity due to the enhanced level of scrutiny.

Section 6C – Judge’s power to prescribe form of judge’s report

18. This is a new power which is not subject to Parliamentary procedure. Section 6C imposes a duty on a court which imposes a custody and community sentence to produce a report on the circumstances of the case, and any other information as the court considers appropriate.  This power was introduced at Stage 2.  Section 6C provided that the report is to be in such form as prescribed by Act of Adjournal. 

19. The Committee confirmed with the Executive that the Lord President was consulted on the need for this power. It questioned, however, whether existing powers to make Acts of Adjournal meant that the power was unnecessary.

20. The Executive agreed with the Committee and lodged an amendment to remove the need for a form prescribed by Act of Adjournal and to leave this to the court’s discretion.

21. The Committee is content with the Executive’s amendment to remove the power.

Section 43 – new section 27Q of the 1982 Act – power to provide exceptions to certain offences under the 1982 Act

22. At Stage 1, the Executive justified this power (which was subject to negative procedure) on the basis that it would be used to enable test purchasing of items and that this type of order was precedented. The Committee was content with the power in principle, but it considered that whilst there may be a need for test purchasing, the power is not restricted to persons who may be exempted (for example, persons commissioned by the relevant local authority) or to circumstances (for example, for the purpose of ensuring compliance with the licensing scheme).

23. The Executive indicated that it does not envisage further uses for the power. It also considered the power to be narrow.

24. The Committee considers that whilst the policy intention may be a narrow one, it does not believe that this transfers to the power itself. The power, in its view, could be exercised to exclude other categories of person from offences under the scheme, which may dilute its effectiveness.

25. The Executive, in oral evidence (col. 2363-65), admitted that it did consider limiting the scope of the power, but it had a desire for flexibility in the operation of the licensing scheme and the delegated powers taken in relation to it. (The reasoning given was that practical operation of the scheme might result in unforeseen anomalies).  It confirmed that the power is not designed to make wide, sweeping changes.

26. The Committee asked the Executive to consider lodging an amendment to change the procedure to affirmative, and the Executive agreed to do this.

27. The Committee is content with the power and with the lodged Executive amendment to make it subject to affirmative procedure.

Section 47 – Ancillary provision

28. Section 47(1) provides that Ministers may, by order, make supplemental, incidental etc provisions as they consider appropriate.

29. Section 47(2) provides that such an order “may modify any enactment etc”.

30. Under section 48(3) such orders are subject to negative procedure. In response to the Committee’s concerns about the modification of an Act being subject to negative procedure only, the Executive lodged an amendment to make the power subject to affirmative procedure in those circumstances.

31.The Committee is content with the power and with the lodged Executive amendment to make it subject to affirmative procedure.

New amendments introduced by the Executive for debate at Stage 3

The Executive also lodged other amendments at Stage 3.

New section (after section 42) – cross-border transfer of prisoners

This new power enables provision to be made for the transfer of prisoners in and out of Scotland.  The Committee is content with the power which is subject to affirmative procedure.

Section 45 – sale etc. of weapons

34. This Committee was content with this power at stage 1. The Executive has lodged  stage 3 amendments which affect this power. (The power at Stage 1 enabled the making of exceptions and exemptions from offences and creation of defences.   In consequence of amendments which specify certain exceptions  in the Bill itself, the power is proposed to be amended to become a more general power to modify .  The Committee is content with the power which is subject to affirmative procedure.

Section 46 – sale etc. of swords

35. The Committee was content with this power at stage 1. The Executive has brought forward amendments with a view to simplify the drafting and to amend section 141ZA to make it clear that the power is without prejudice to the generality of the power in section 141(11A) of the 1988 Act. The Committee is content with the power which is subject to affirmative procedure.

New Schedule – sentences framed to run consecutively

36. The Executive has lodged a stage 3 amendment which confers powers on a court to frame a sentence so as to be consecutive upon an existing one. Paragraph 6 confers an order making power on Scottish Ministers enabling them to make provision for the application of this schedule, with modifications where a previous sentence is passed in the UK, outwith Scotland. The Committee is content with the power which is subject to affirmative procedure.

ANNEX

Letter from the Executive of 7 March 2007

1. The Subordinate Legislation Committee (SLC) took evidence from Scottish Executive officials on Tuesday 6th March about the Custodial Sentences and Weapons (Scotland) Bill as amended at Stage 2. I am grateful to the SLC for providing this opportunity for officials to provide an update on the amendments, planned for Stage 3, which change the delegated powers provisions.

2. I now write to confirm that a number of amendments which change the delegated powers provisions will be made at Stage 3. They will be lodged with the Parliament by Thursday, 8 March at the latest.

3. The SLC has already been advised that the commitment given in Mrs Richardson's letter of 16 November 2006 to make the power under section 6(10) (amended at Stage 2 by Amendment 23 to insert it as a new section 6B) subject to affirmative procedure will be lodged as an amendment at Stage 3 of the Bill.

4. It was confirmed to the SLC that the Lord President had been consulted about the Act of Adjournal power in the provisions dealing with information from the courts at section 6C. However, I can confirm that the further amendment being made to these provisions at Stage 3 makes this power unnecessary and the Act of Adjournal power will be removed.

5. The SLC was also advised of the insertion of a new order making power to deal with cross-border transfers of prisoners. This power will be subject to affirmative procedure.

6. I understand that the SLC yesterday asked that the Executive should provide for affirmative resolution procedure to operate in relation to section 27Q (to be inserted into the Civic Government (Scotland) Act 1982 by section 43 of the Bill). We had not considered such a change at Stage 2 since the Committee had previously indicated that is was content with negative procedure and negative procedure is not unprecedented for such powers. However, I have considered the points raised by the SLC and can confirm that the Executive will amend the Bill at Stage 3 in order to provide for affirmative procedure in relation to the order making powers in section 27Q.

7. Officials indicated yesterday that further amendments to the weapons sections of the Bill were being considered. I can confirm that we propose to amend section 45 of the Bill in relation to the power in subsection (I1A) (to be inserted into section 141 of the Criminal Justice Act 1988) to modify the application of that section of the 1988 Act in relation to weapons specified in an order made under that section. As the SLC will recall, the intention of these powers is to enable exceptions to be made to ban on the sale of weapons where there are legitimate reasons for the exception, such as religious, cultural and sporting purposes. This amendment is related to other amendments being made to this section to ensure that any exceptions to manufacture, sale, hire etc. interface effectively with the import regime. The amendment is designed to ensure that an order made to implement such a ban can comply with that requirement.

8. It was also indicated to the SLC that the Executive would consider an amendment to ensure that, in the case where the order-making power under section 47(1) of the Bill is used to modify any enactment in terms of subsection (2) of that provision, that would be subject to affirmative procedure. I can confirm that an amendment to achieve that will be laid by the Executive.

9. I hope that you and your members will find this confirmation of the Executive's position on relevant amendments at Stage 3 helpful.

Letter from the Executive of 8 March 2007

1. My letter of 7 March confirmed that a number of amendments which change the delegated powers provisions would be made at Stage 3.  These amendments were lodged with the Parliament on Thursday, 8 March.

2. I now write to advise you of a new order making power to apply the provisions in the new schedule dealing with consecutive sentences to cases where a previous sentence is imposed by a court elsewhere in the United Kingdom.  This power will be subject to affirmative procedure and will be lodged with the Parliament today.

3. The new schedule makes provision for the application of the Bill in relation to sentences which are framed to run consecutively. Given the technical complexity of those provisions, it is necessary to take a new order-making power to deal with cases where a previous sentence is imposed by a court out with Scotland as there is currently no provision for this in the Bill. 

4. I hope that you and your members will find this helpful.


Footnotes: