Draft Bail and Release from Custody (Scotland) Act 2023 (Consequential Modifications) Order 2024
Martin McCluskey (Inverclyde and Renfrewshire West) (Lab)
I beg to move,
That the Committee has considered the draft Bail and Release from Custody (Scotland) Act 2023 (Consequential Modifications) Order 2024.
It is a pleasure to serve under your chairmanship, Mrs Harris. The draft order was laid on 21 October 2024.
I welcome the new shadow Secretary of State for Scotland, the hon. Member for West Aberdeenshire and Kincardine (Andrew Bowie), to his place.
Martin McCluskey
Yes, just in time. I also pass on the apologies of the Secretary of State for Scotland, who is appearing before a Select Committee.
The order is the result of collaborative working between the two Governments, in Scotland and Westminster, and supports the Scottish Government’s decision to implement the Bail and Release from Custody (Scotland) Act 2023. The order will be made under section 104 of the Scotland Act 1998, in consequence of the 2023 Act. A section 104 order is the most common type of Scotland Act order, and is used to make technical amendments to UK reserved legislation to facilitate the policy aims of an Act of the Scottish Parliament or secondary legislation made by Scottish Ministers. Scotland Act orders demonstrate devolution in action, and I am pleased that this is the fourth Scotland Act order put to the House by this Government.
I will explain the effect and provisions of the order. Extradition proceedings take place in summary courts, which are magistrates courts in England, Wales and Northern Ireland and sheriff courts in Scotland. Were there changes to the legal framework for bail considerations in those courts, that might impact on extradition cases. That could happen in this instance, and both Scotland’s Governments agree that that would not be appropriate, so we using the order to prevent it. The order does not make changes to extradition law across the UK or affect policy and legal frameworks for extradition in any way. It will ensure that courts in Scotland continue to be able to consider flight risk as a ground for refusal of bail in the context of extradition proceedings, in line with the rest of the UK.
The order will ensure that a limitation on the court’s ability to remand persons at risk of failing to appear in court, under the new test for bail in Scottish summary courts, does not extend to extradition cases. That will mitigate the risk of a person wanted for extradition being granted bail under the new regime when it would not have been granted under the previous regime. Without the order, individuals accused of serious crimes who are wanted for extradition could be granted bail under the new regime because the courts would not retain their current discretion to consider flight risk. That would create a risk that the requested person absconds and evades justice.
The Bail and Release from Custody (Scotland) Act was passed by the Scottish Parliament in June 2023. It seeks to ensure that, as much as possible, the use of remand for domestic criminal cases within the Scottish criminal justice system is a last resort, reserved for cases where public safety requires it, or where there is a significant risk of prejudice to the interests of justice. The Act amends sections 23B and 23C of the Criminal Procedure (Scotland) Act 1995 to limit the circumstances in which the court, in summary proceedings in Scotland, can refuse an individual’s bail application.
In particular, the amendments to section 23C include a new subsection that limits the extent to which a court may take into account any substantial risk of a person absconding or failing to appear when it is determining whether there is a good reason for refusing bail in summary proceedings. That would remove sheriffs’ ability to consider whether an individual may abscond from further proceedings, unless the individual has already failed to appear in a Scottish domestic criminal court case. It should be noted that the restrictions would not apply to judges who are considering whether to refuse bail in solemn proceedings, which are the equivalent of Crown courts in England, Wales and Northern Ireland.
The Extradition Act 2003, which applies across the whole UK, prescribes that the cases of individuals arrested, subject to an extradition request from an international partner, are to be overseen by a specialised extradition judge—in Scotland, that is the sheriff of Lothian and Borders. When hearing extradition cases, the sheriff has powers available in relation to bail as if the case were summary proceedings in respect of an offence alleged to have been committed by the person. Cases proceeding by way of summary proceedings in Scotland involve less serious crimes than extradition cases typically do.
Under existing Scottish bail legislation, the sheriff considering bail in an extradition case can consider the question of flight risk from the outset of the case. That is important, as the nature of extradition means that the individual may pose a substantial risk of absconding or failing to appear. The order ensures that sheriffs retain their discretion to decide whether those subject to an extradition request are remanded in custody while they wait for hearings.
Andrew Bowie (West Aberdeenshire and Kincardine) (Con)
It is a pleasure to serve under your chairship this morning, Mrs Harris. I thank the Minister for his kind remarks in welcoming me to this post. I am glad that I made it just in time for this Delegated Legislation Committee.
The Committee will be pleased to learn I intend to keep my remarks brief. We will not oppose the draft Bail and Release from Custody (Scotland) Act 2023 (Consequential Modifications) Order 2024, although the issue it seeks to rectify is one that perhaps should not have arisen in the first place. None the less, we want to ensure UK-wide consistency, because this is clearly an important area of the law, with real-world consequences.
We want the parameters for granting or rejecting bail in extradition cases in Scotland to be in line with standards elsewhere in the UK. It cannot be right that, under that the Bail and Release from Custody (Scotland) Act passed by the Scottish Parliament last year, sheriffs hearing extradition cases in Scotland would no longer be able to remand an individual accused of an offence on the basis that there is a high risk that they will abscond, unless said individual had previously failed to appear in court for that offence or one of the charges in the live case is one of failure to appear before a court.
Flight risk should be a serious consideration, and a situation in which courts in Scotland are more limited in that respect than those in other parts of the UK would not be right, not least because people accused in extradition proceedings are often considered at risk of flight. Maintaining the integrity of the Extradition Act and of the UK’s broader extradition system is therefore a priority, for our own sake and that of countries with which we have extradition arrangements.
I note that the UK Government have not held a formal consultation on the order, but they have put on record that they consulted the Scottish Government. Can the Minister shed any further light on those discussions and on how we might avoid similar circumstances arising in future? To conclude, however, we do not intend to stand in the way of the order.
Martin McCluskey
I thank the shadow Secretary of State for his contribution and welcome his support for the order. Obviously, I agree about the need to maintain the integrity of the UK extradition system.
On the hon. Gentleman’s question regarding how we avoid such circumstances in the future, there has been quite a collaborative process between the Scottish and UK Governments, and it was started under the previous Government, in which he served. It is important that the consultation that happened at the time was robust. This is not something that would ordinarily be relevant for a public consultation. I do not necessarily agree with the shadow Minister that there is a problem here; there was a robust discussion before, and the issue was flagged and discussed. We came to the conclusion that the order was the way to proceed. As part of resetting our relationship—as the Scottish and UK Governments are doing—we are having ongoing discussions on a whole range of issues to ensure that we have a close working relationship with the Scottish Government in future.
We welcome the shadow Minister’s support for the order. This statutory instrument demonstrates the UK Government’s continued commitment to work with the Scottish Government to deliver for Scotland. On that basis, I commend the order.
Question put and agreed to.
Draft Judicial Pensions (Amendment) Regulations 2024
(1 month ago)
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The Minister of State, Ministry of Justice (Heidi Alexander)
I beg to move,
That the Committee has considered the draft Judicial Pensions (Amendment) Regulations 2024.
It is an honour to serve under your chairmanship, Mr Betts. This is my first Delegated Legislation Committee as a Minister. In fact, this is my first speech in this House since the general election. It is somewhat of an unexpected pleasure to be speaking on the subject of judicial pensions.
The draft statutory instrument amends a number of the judicial pensions regulations, and specifically the Judicial Pensions (Fee-Paid Judges) Regulations 2017, referred to as the FPJPS regulations; the Judicial Pensions (Fee-Paid Judges) (Amendment) Regulations 2023, referred to as the 2023 FPJPS amendments; the Judicial Pensions Regulations 2022, referred to as the JPS22 regulations; the Judicial Pensions Regulations 2015, referred to as the JPS15 regulations; and the Public Service Pensions Act 2013 (Judicial Offices) Order 2015, referred to as the judicial offices order. I hope the Committee is keeping up.
The judicial pension scheme is made up of a number of historical pension schemes. Since April 2022, the only scheme open for pension benefit accruals is the judicial pension scheme 2022. All preceding judicial pension schemes closed to further accruals on 31 March 2022, but the older schemes are still relevant, as the majority of judges have service extending across multiple schemes.
The FPJPS regulations established the fee-paid judicial pension scheme. The JPS15 and JPS22 regulations established the judicial pension scheme 2015 and the judicial pension scheme 2022 respectively. The amendments in the draft regulations will make a range of changes to improve and, where necessary, correct the running of those schemes, in line with statutory requirements and actuarial advice.
By their nature, the draft regulations are highly technical. In essence, the amendments to the existing schemes do the following. First, they provide for an employer cost cap in the judicial pension scheme 2022, following the completion of the scheme valuation in February 2024. Secondly, they add further eligible judicial offices to the appropriate pension scheme, where that eligibility has now been determined. Thirdly, they extend a number of deadlines for member elections under the fee-paid judicial scheme. Fourthly, they extend powers to reconcile amounts that were paid to judges whose pre-2000 service must now be taken into account as a result of the O’Brien 2 litigation, in respect of those new, pre-2000 entitlements, with their formal entitlements for that period. Finally, a number of technical changes are required to facilitate the smooth running of the pension schemes. I shall cover each of those points in more detail.
The amendments provide for inclusion of a cost control mechanism—CCM, for short—in the JPS22 regulations. That is a statutory requirement under the Public Service Pensions Act 2013 for all public sector pension schemes. That must be included by 6 February 2025, one year on from the first actuarial valuation of the scheme by the Government Actuary’s Department.
The CCM is designed to ensure a fair balance of risk with regard to the cost of providing public service defined-benefit pension schemes between members of those schemes and the Exchequer. That is partly achieved through setting an employer cost cap. If, when the overall CCM is tested, costs have increased or decreased by more than a specified percentage of pensionable pay compared to the employer cost cap, member benefits and/or member contributions in the relevant scheme are adjusted to bring costs back to target. That could mean, for example, that a member’s contribution rate could go up or down. However, the mechanism is designed with the intention that that would be triggered only by “extraordinary, unpredictable events”.
The amendments also add a number of judicial offices into the FPJPS, JPS15 and JPS22, where their eligibility for a judicial pension has been determined. That will allow those members to accrue pensions in the correct scheme for their office and, where applicable, to have access to retrospective entitlements in JPS15 and JPS22, enabling members with service in those offices to access the benefits they are entitled to and to make the correct contributions to the scheme.
A number of deadlines are also being extended for member elections in the FPJPS. Following the O’Brien 2 judgment, the scheme was amended in 2023 to take into account eligible service prior to 7 April 2000, in order to mirror pension entitlements for the salaried judiciary. The 2023 amendments set deadlines by which eligible members must make an election concerning their FPJPS pension provisions and purchase additional pension benefits that they were entitled to following the O’Brien 2 judgment. We are now extending those deadlines to allow more time for the scheme to engage with eligible members, in order to give members the time and information needed to make an informed choice.
In advance of the FPJPS regulations’ being made, the Ministry of Justice made interim payments in lieu of pension, known as PiLs, to eligible judges, to provide an approximation of the remedy they would likely receive once the legislation was in place and operationalised. The regulations included a power to reconcile those payments with the actual amounts of pension owing. The power allowed the MOJ, once the regulations were in force, to either recover any excess PiLs payments made, or pay out further pension where PiLs had been underpaid.
Following the O’Brien 2 litigation, this power was extended by the 2023 FPJPS amendments to permit the MOJ to reconcile PiLs paid to judges in relation to their pre-2000 service, where those amounts were paid before 1 April 2023, the date on which the 2023 FPJPS amendments came into force. However, exact pension entitlements could not be calculated immediately from 1 April 2023, due to operational constraints, so payments continued to be made on an approximated basis after that date, albeit that they were paid as pension rather than PiLs. Therefore, the amendment regulations before us extend the reconciliation powers to permit MOJ to continue to reconcile the approximated pension payments made to judges from 1 April 2023 in respect of their pre-2000 service.
Finally, a number of further technical amendments to the FPJPS and to JPS22 correct typographical errors and cross-references to ensure that the regulations reflect the policy intention. Additionally, the FPJPS regulations included a voluntary fee-paid judicial added benefits scheme when it came into force; this was amended in 2023 to reflect the O’Brien 2 remedy. The scheme is highly technical, and in operationalising it we have identified the need to amend the scheme again to simplify its structure, make some clarifications and corrections, and include updated actuarial factors for determining cost and conversion values for added units of benefit. This will allow the scheme to run more smoothly and will better reflect the original intention to mirror the provisions available to relevant salaried comparators
I turn now to the consultation that we have undertaken on these amendments. On 19 February 2024 the MOJ opened a consultation on the proposals, which closed on 14 April. There were six responses, which were of a technical nature, with no objections to the content of the amendments. On 14 October the Government response was published, setting out that no further changes to the amendments were needed to address the responses.
Officials in the devolved Administrations in Scotland, Northern Ireland and Wales have been kept apprised of the development of the amendment regulations, in particular in relation to the offices whose jurisdictions are in those countries, and their views have been reflected in the drafting. The Secretary of State for Scotland was also consulted.
Subsequent to the consultation, the MOJ identified the need for additional amendments to extend the reconciliation powers and to further extend certain deadlines. It engaged the senior judiciary on these matters, which also resulted in no objections to the amendments.
In conclusion, I assure Committee members that the amendments set out in this statutory instrument are necessary to improve and correct the running of the judicial pension schemes, to meet our statutory duty to insert a cost cap mechanism and, together with other measures on judicial pay and pensions, to help ensure that we can continue to support our outstanding independent judiciary.
Dr Kieran Mullan (Bexhill and Battle) (Con)
It is a pleasure to serve under your chairmanship, Mr Betts. As the Minister explained, this legislation is somewhat technical, so I do not intend to add anything beyond the minimum necessary to the time that colleagues are required to be here. I know that the Prime Minister is a particular fan of pensions law and is lucky enough to have his own one, but I do not think he expects his colleagues to be equally enthusiastic about it.
As the Minister said, the Judicial Pensions (Amendment) Regulations 2024 make essential updates to our judicial pension schemes. Those changes originate from the previous Government and were always expected to garner cross-party support. The regulations are a crucial part of the ongoing reform process and are aimed at ensuring not only fairness, clarity and efficiency in the pension system for judges, but compliance with legislative and actuarial recommendations.
The regulations address several key areas in the judicial pension schemes. To reiterate, the first is the introduction of an employer cost cap, which is a critical measure required under the Public Service Pensions Act 2013. Importantly, that mechanism will trigger adjustments only in response to significant and unpredictable changes, ensuring that alterations to the pension scheme are made cautiously and only when absolutely necessary. The second is the extension of eligibility for pension benefits to additional judicial officers within the FPJPS. That ensures that judges in newly clarified or newly created judicial roles can now access pension benefits in a way that properly reflects their service. The regulations also address the complex issue of the transfer of service between different pension schemes, ensuring that judges receive their full and correct pension entitlements.
In addition, the regulations extend the deadlines for member elections within the FPJPS. The additional time provided will allow judges to make informed choices about their pension options, ensuring that no one is rushed into a decision without understanding the full implications. There are further measures, but I need not repeat them as the Minister has outlined them.
In conclusion, the regulations represent a significant step forward in the reform of judicial pensions. The judiciary plays an absolutely vital role in the functioning of our justice system, and it is imperative that we continue to support and incentivise talented individuals to join and remain in the judiciary. The regulations will ensure that our pension system remains attractive, fair and sustainable, offering security to judges in their retirement, while also protecting taxpayers. I am conscious of my pledge to be brief, so I can confirm that the Opposition support these changes. I have nothing further to add.
Heidi Alexander
I am grateful to the shadow spokesperson for his support and brevity, and I am sure all members of the Committee endorse that comment. With that, Mr Betts, I hope you agree that this statutory instrument is necessary, and I commend it to the Committee.
Question put and agreed to.
Draft Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment of Schedule A2) Order 2024
(1 month ago)
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The Parliamentary Under-Secretary of State for Business and Trade (Justin Madders)
I beg to move,
That the Committee has considered the draft Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment of Schedule A2) Order 2024.
It is a pleasure to see you in the Chair, Mr Mundell. This order was laid in draft before the House on 17 October 2024. I start by referring to my entry in the Register of Members’ Financial Interests. This straightforward instrument relates to protective awards, which can be made by an employment tribunal when an employer does not meet its collective consultation obligations. Those obligations currently apply when an employer is proposing to dismiss 20 or more employees within any 90-day period at a single establishment.
Schedule A2 to the Trade Union and Labour Relations (Consolidation) Act 1992 sets out the list of claims for which an employment tribunal can make a 25% adjustment to compensation if one of the parties has unreasonably failed to comply with a relevant code of practice. Collective consultation requirements apply, among other things, to dismissal and re-engagement scenarios involving 20 or more employees. The code of practice on dismissal and re-engagement will be a relevant code of practice in such cases.
The change will mean that when an employment tribunal is making a protective award in a case where the code applies, and it appears to the tribunal that the employer has unreasonably failed to comply with the code, the tribunal may increase that award by up to 25%, increasing the deterrent effect of the code. In other words, if an employer dismisses and re-engages employees but does not meet its collective consultation obligations and unreasonably fails to comply with the code, it will be liable for a greater payout. The order will therefore give the tribunal greater discretion to take individual behaviours into account when making an award. It will add a key potential claim in dismissal and re-engagement scenarios to the list of awards that can attract a 25% adjustment for non-compliance with the code.
As Committee members may be aware, a version of this order was debated and approved in the House earlier this year; however, because the election was called and Parliament was dissolved, it was not debated in the other place. That is why we are here debating it again. If the order is approved in both Houses, it will come into force in January 2025.
The Government are committed to going much further than is set out in the code. We have brought forward the Employment Rights Bill within our first 100 days of government, as we promised; that will end the unscrupulous fire and rehire practices that we believe have no place in a modern employment market. In the meantime, before the Bill completes its passage and comes into force, we have decided to continue with the previous Government’s code of practice, which came into force earlier in the summer. Although we recognise that it is inadequate on its own, it does offer some additional protections to working people.
The code sets out employers’ responsibilities when seeking to change contractual terms and conditions of employment. As I said, the order will mean that there could be a 25% uplift in the award if an employer has unreasonably failed to comply with the code. But we will go further by ending the unscrupulous use of fire and rehire. We are consulting on reforming the law to provide effective remedies against abuse and will replace the statutory code with a strengthened code of practice. We have launched a consultation to gain views on increasing the cap on the protective award for scenarios where employers have not complied with collective redundancy rules; and on adding interim relief to collective redundancy and fire and rehire scenarios. Increasing the protective award would mean that the small proportion of companies that flout existing rules could end up paying significantly more per employee. The consultation also seeks views on whether interim relief should be available to employees who bring claims for unfair dismissal in fire and rehire scenarios and for breaches of collective consultation requirements.
I will not say any more about this straightforward regulation. I conclude by highlighting the Government’s ambitions on the “Make Work Pay” plan, which sets out an ambitious agenda that will strengthen the rights of workers, address the fragmented labour market and support workers in balancing responsibilities outside work. In so doing, “Make Work Pay” will help people stay in work, make work more secure and family-friendly, and improve living standards, putting more money in working people’s pockets.
Greg Smith (Mid Buckinghamshire) (Con)
It is a pleasure to serve under your chairmanship, Mr Mundell.
As the Minister said, this draft statutory instrument was largely consulted on and prepared by the previous Conservative Government, so clearly the Opposition will not divide the Committee this afternoon. I congratulate the Department for Business and Trade, however, on managing to update the explanatory memorandum, unlike a Department for Transport statutory instrument that I responded to the other week, which still listed Guy Opperman, a Minister in the previous Government, as having signed off the declaration.
The measures in the draft Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment of Schedule A2) Order 2024 build on legislation passed under the previous Government. The memorandum that accompanies this statutory instrument directly references historical concerns about fire and rehire tactics, which—I put it to the Committee—the last Conservative Government addressed through the establishment of a statutory code of practice. I gently suggest to the Minister that that should be reflected in the Bill that comes to Committee next week.
In government, we were clear with employers that they must not use threats of dismissal to pressurise employees into accepting new terms, and that they should have honest and open-minded discussions with their employees and representatives. In accordance with the code of practice, businesses must consult with employees in a fair and transparent way when proposing changes to their employment terms.
The Conservatives took the initiative to uphold and secure employment rights. Meanwhile, the Government—this is where some contention sneaks in—seem content with their disastrous national insurance jobs tax on employers and employees, the latter shouldering 76% of the cost according to the Office for Budget Responsibility, and to see businesses struggle and in many cases risk failure all together. There cannot be employee protections without employees in the first place.
Andy McDonald (Middlesbrough and Thornaby East) (Lab)
It is a delight to see you in the Chair, Mr Mundell. I had wondered whether it was necessary to speak, but given some of the comments I have just heard, I feel compelled to do so.
I congratulate my hon. Friend the Minister on the Employment Rights Bill, on the back of the “New Deal for Working People”. The Bill will be the single and foremost change to working people’s terms and conditions in this country for more than a generation. It is long overdue. When I first saw this order, however, I got quite a shock. I thought, “Is this it?”, although I suppose a 25% uplift is better than nowt. But of course it has not come from our Front Bench, thank goodness; it is something we have inherited.
I want to look at this draft measure through the prism of fire and rehire—actually, not fire and rehire, but fire and replace—that we came up against in P&O Ferries and Peter Hebblethwaite. I was a member of the Business and Trade Committee that heard evidence from that chief executive. He made it abundantly clear that he was quite prepared to break the law of the land on consultation periods and to price it into the compensation, the pay-off, of his workforce.
All we got from the then Government was a wringing of hands, a condemnation and very little else. The draft order seems to be the sum total of their response to that travesty. I have to tell the Committee that the 25% uplift would be a doddle to the likes of P&O. It would not be impacted one jot. I am delighted that the Minister mentioned interim relief; when we go forward with our excellent Employment Rights Bill, I am sure we will discuss what that will look like.
I gently say that if we are going to be able to stop another P&O, we will need injunctive relief because trying to bring out interim relief after the horse has bolted will be no good whatever. I also gently suggest that the sorts of financial penalties that need to be imposed on the egregious behaviours of the likes of P&O will have to be significantly higher. There was discussion about unlimited fines being visited on those who had deliberately prepared to break the law for their own ends. We have to look at those issues very carefully.
In addition, now that we have the opportunity we have to reflect on the appalling record of enforcement across the piece. The number of tribunal awards that are not paid out by employers is legion, and the ability of people to then pursue their enforcement is sadly lacking. It is critically important that we should have rights and protections for our workforce and the powers to have those enforced. I will close with that; I just express my relief that we did not bring the measure forward—
Graham Stuart (Beverley and Holderness) (Con)
You are bringing it forward—that’s what we are doing here!
Andy McDonald
I get the right hon. Gentleman’s point, but the legislation did not originate from the Government side. We are taking this first step, but I put the Opposition on notice that it is simply a first step.
Justin Madders
I welcome the Opposition spokesperson, the hon. Member for Mid Buckinghamshire, to his place. I fear we will be seeing a lot more of each other. No doubt we can pick up some of the wider points he made during our consideration of the Employment Rights Bill, which we will be debating over a number of weeks.
In response to the hon. Gentleman’s critique, I gently point out to him that this is a significant step forward. However, as my hon. Friend the Member for Middlesbrough and Thornaby East said, even the Advisory, Conciliation and Arbitration Service, when asked to respond to the measure, said that it might not always present a significant deterrent when calculated against the financial costs and risks of an alternative approach. So even ACAS, whose job it is to reduce employment disputes, does not believe that it goes far enough. The Government are clear that we do not believe it goes far enough, which is why we are consulting on measures such as removing or doubling the cap for protective awards, and possibly introducing interim relief. All Members are invited to respond to the ongoing open consultation.
I am pleased that we have agreement across the board about the measure. It is a small step forward—an interim step—but it is not the final destination. The Government are clear that we want to ensure that the likes of what happened at P&O can never happen again. I commend the measure to the House.
Question put and agreed to.