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.