Bail and Release from Custody (Scotland) Act 2023 (Consequential Modifications) Order 2024

Baroness Anderson of Stoke-on-Trent Excerpts

Thursday 28th November 2024 Grand Committee

Moved by

[Baroness Anderson of Stoke-on-Trent]

That the Grand Committee do consider the Bail and Release from Custody (Scotland) Act 2023 (Consequential Modifications) Order 2024.

[Baroness Anderson of Stoke-on-Trent (Lab)]

My Lords, I beg to move that the draft order, which was laid on 21 October 2024, be approved. This 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 in Scotland. The order will be made under Section 104 of the Scotland Act 1998, in consequence of the Scottish Government’s 2023 Act.

A Section 104 order is the most common type of Scotland Act order. They are 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 are a demonstration of devolution in action and I am pleased to say this is the fourth such order to be put to the House by this Government. Officials across the UK and the Scottish Government have worked closely together on this order, with consultation between the Home Office, the Scotland Office, the Office of the Advocate-General, the Scottish Parliament and the Crown Office & Procurator Fiscal Service.

I will explain the effect that this order will have and the provision it will make. I should begin by explaining that extradition proceedings take place in summary courts: these are magistrates’ courts in England, Wales and Northern Ireland, and sheriff courts in Scotland. This means that if there are changes to the legal framework for bail conditions in relation to these courts, it would also impact on extradition cases. That is what could happen in this instance; both our Governments agree that this would not be appropriate, so we are using this order to prevent that. This order does not make changes to extradition law across the UK or affect current extradition policy and legal frameworks in any way. It ensures that courts in Scotland continue to have the ability to consider the question of flight risk as a ground for refusal of bail in the context of extradition proceedings and in line with the rest of the UK.

The order will ensure that a limitation on the courts’ 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. This will mitigate the risks of a person wanted for extradition being granted bail under the new regime when they would not have been under the previous regime. Without this order being in force, individuals accused of serious crimes while wanted for extradition may be granted bail under the new regime, because the courts would not retain their current levels of discretion to consider the question of flight risk. This creates risks in relation to the requested person absconding and evading justice.

The Bail and Release from Custody (Scotland) Act 2023 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 there is a significant risk of prejudice to the interests of justice. The Act limits the circumstances in which the court in summary proceedings in Scotland can refuse an individual’s bail application by amending Sections 23B and 23C of the Criminal Procedure (Scotland) Act 1995.

In particular, amendments to Section 23C includes a new subsection, which limits the extent to which a court may take into account any substantial risk of a person absconding or failing to appear when determining whether there is a good reason for refusing bail in summary proceedings. This would remove the ability of sheriffs to consider whether the individual in question may abscond from further proceedings unless they have already failed to appear in a Scottish domestic criminal court case. It should be noted that these restrictions would not apply to judges who are considering whether to refuse bail in summary proceedings, which are the equivalent of the Crown Courts in England, Wales and Northern Ireland.

The Extradition Act 2003, which applies across the whole of the UK, prescribes that cases of individuals arrested subject to an extradition request from an international partner are to be overseen by a specialist extradition judge. In Scotland, this is the Sheriff of Lothian and Borders. When hearing extradition cases, the sheriff has the 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 currently do.

Under current Scottish bail legislation, the sheriff considering bail in an extradition case can consider the question of flight risk from the very outset of a case. This is important, as the nature of extradition means that the individual in question may pose a substantial risk of absconding or failing to appear. This order ensures that, when the provisions limiting the circumstances in which the court in summary proceedings in Scotland can refuse an individual’s bail application come into force, sheriffs retain their current levels of discretion to decide whether those subject to an extradition request are remanded in custody while they wait for their hearing.

I hope noble Lords can support this statutory instrument so that we can ensure that we have the right powers across the UK to deal with extradition requests in a fair and effective way.

[Lord Cameron of Lochiel (Con)]

My Lords, I thank the Minister for her opening remarks and add my thanks to the Civil Service officials in the various departments that have worked on this order.

We will not oppose the order. As has been outlined, it makes consequential changes as a result of Section 2 of the Bail and Release from Custody (Scotland) Act 2023, passed by the Scottish Parliament last year. Section 2 amends the test which the court must apply when considering whether to grant bail to a person accused of or charged with an offence in summary proceedings. As has been outlined, in essence, Section 2(3) limits the extent to which the court may refuse bail in summary proceedings when reliance is placed on a specific ground of refusal of bail: namely, that the accused, if granted bail, might abscond or fail to appear at court diets as required.

I need not detain your Lordships with the more technical aspects of that change; suffice it to say that this order excludes from the alteration made last year bail decisions in extradition proceedings. That is an important decision, and one with which we on these Benches concur. It is notable that last year in the Scottish Parliament, both Scottish Conservatives and Scottish Labour MSPs voted against the 2023 Act. Nevertheless, we are where we are. It is of paramount importance that there is alignment across the UK for granting or rejecting bail in extradition cases, given that accused persons in extradition proceedings are often considered a flight risk and that maintaining the integrity of the Extradition Act and the UK’s broader extradition system is critical, points made by my colleague Andrew Bowie MP last week in Committee.

In conclusion, I ask the Minister what discussions the UK Government have had with the Scottish Government about the interplay between UK government policy in this area and changes to Scottish criminal procedure as enacted by the Scottish Government to avoid issues such as this emerging in future. In particular, have the UK Government made any assessment of the impact on UK government policy of the Prisoners (Early Release) (Scotland) Bill, passed only this week by the Scottish Parliament?

[Baroness Anderson of Stoke-on-Trent (Lab)]

I thank the noble Lord—I was going to say “noble Lords”—for his contribution to the debate and for his questions. I also put on record my thanks to the Civil Service, which works tirelessly to make our Government function and to support the Opposition to make sure that we can deliver in the way that we need to.

With regard to the noble Lord’s question about making sure this never happens again, as he will know, we are trying to reset and normalise relationships and discussions with the Scottish Government and all devolved Administrations, and I hope that, as part of those ongoing and more regular discussions, issues such as this will be raised in advance. However, I welcome the fact that the Scottish Government approached the UK Government when they realised this anomaly and sought to work with the previous Administration and now the current one to fix it. That is a step in the right direction. With regard to the other issues that the noble Lord raised, I will have to write to him with an update, but I will ensure that it follows.

In closing, this instrument demonstrates the continued commitment that the UK Government have to work with the Scottish Government to deliver for Scotland, ensuring devolution in action as we celebrate 25 years of devolution. On that basis, I commend the instrument.

Motion agreed.