Scotland Act 1998 (Insolvency Functions) Order 2017

Debate between Lord Bruce of Bennachie and Lord McAvoy

Wednesday 29th November 2017 Grand Committee

[Lord McAvoy (Lab)]

My Lords, I thank the Minister for his explanation of the order, the first of many instruments to be debated today. I put on record my pleasure at operating under the chairmanship of the noble Lord, Lord Rogan. It is the first time I have operated under his chairmanship, and I hope he is kind and pleasant with me.

As we have heard, the order relates to corporate insolvency rules in Scotland and the complexities that arise due to winding up being a mixed area of competence. The Minister will no doubt have in mind the fact that the future may hold many more discussions about mixed areas of competence as we move forward with our exit out of the European Union. Fortunately, today’s order is intended to make an existing process simpler and has received general support. I place on record our support for it.

As the Minister explained, the order would confer mutual functions on Scottish Ministers and a Minister of the Crown so that both have the power to bring forward winding-up rules and regulations for Scotland in relation to companies, incorporated friendly societies and limited liability partnerships. We accept the arguments that this will alleviate an otherwise complex assessment of which matters are reserved in this specific area and assist in the modernisation of these rules as regards Scotland by ensuring the provisions are held in one single order rather than split across multiple instruments. We are content to support the order.

As I understand it, the provisions are made with an assurance that a Minister of the Crown will be able to exercise these functions only with the agreement of a member of the Scottish Government. I may be a doubting Thomas, but I am sure that occasionally a dispute may arise in the future and a challenge to the agreement. Has a procedure been envisaged for what happens if a conflict arises and the relevant Ministers find themselves in disagreement over the use of these powers? I am sure that we are all alert to the dangers not of disagreements, but of complex arrangements being misused and misquoted in Scotland as a tactic against the Westminster Parliament. Will the Minister answer that point?

[Lord Bruce of Bennachie (LD)]

May I clarify that the intention is that either the Minister of the Crown or a Scottish Minister may act, but they have to agree with each other? If so, what will be the process by which they consult? There may be circumstances where the action has to be fairly urgent. Clearly, one does not want to use a consultation process which causes delay. Does one simply have to notify the other or do they have to give consent formally either way?

Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2017

Debate between Lord Bruce of Bennachie and Lord McAvoy

Wednesday 29th November 2017 Grand Committee

[Lord McAvoy (Lab)]

My Lords, I again thank the Minister for his very full explanation of the order. As we have heard, it provides legislative changes in consequence of Parts 1 and 2 of the Criminal Justice (Scotland) Act 2016 as passed by the Scottish Parliament. Again, we are content to support the order.

As has been stated, the Act follows, some years later, a review of criminal law and practice in Scotland undertaken by Lord Carloway, and has been subject to detailed scrutiny by Members of the Scottish Parliament. Provisions include changes to police powers, rights of suspects while in police custody, criminal procedure and provisions regarding powers of stop and search. These are wholly within the devolved competence of the Scottish Parliament.

The order is made under Section 104 of the Scotland Act 1998 to make consequential legislative changes regarding arrests effected in Scotland and outside Scotland in connection with crimes committed in Scotland, police custody in Scotland, the investigation of Scottish law crimes and extradition matters in Scotland. I ask the Minister: where these provisions affect officers outside Police Scotland, including police officers across UK forces outside Scotland, immigration and customs officials, NCA officers, the Civil Nuclear Constabulary and other forces covered by the order, has any assessment been made of any additional training or resource needs that might arise from these provisions? If so, who would be responsible for funding any such additional needs identified? I look forward to the Minister’s reply.

[Lord Bruce of Bennachie (LD)]

My Lords, I also thank the Minister for his introduction and explanation. I will explore one or two aspects of this because, as he said himself, it is complex. It is a mixture of devolved and reserved matters.

I will first look at reserved matters relating to human rights, because we have clearly had some controversies in Scottish policing over the last few years. The Liberal Democrats oppose the creation of a Scottish national police force. We believe our criticisms and concerns have been somewhat borne out, certainly in the early part, by the way the national force conducted itself and the fact it appeared to be under somewhat more direct political control than many of us would regard as appropriate and would be the case for police forces in England.

In particular, we saw a massive increase in the use of stop and search by the police in Scotland. In 2013-14, there were 450,173 “consensual” searches. The meaning of “consent” is rather subjective in that context. There were 192,470 statutory searches. Not surprisingly, this created a great deal of public reaction. The Scottish Government responded to that; I give them credit for that, but they needed to because it was a very strong reaction. Consequently, the figures the following year, at least from 1 April to 30 September, saw consensual searches drop to 888 from 450,000 and the statutory searches from 192,470 to 20,665. Consensual searches are now banned altogether, so that is a step in the right direction. I want to check with the Minister, where part of the reaction was not just that public concern but human rights implications that would fall on the UK Government, does this combination of Acts by the Scottish Parliament and this statutory instrument maybe avoid the possibility of that particular question of human rights being addressed again?

The other area is the issue of cross-border policing generally. The Minister mentioned the MoD police, civil nuclear police and British Transport Police. The Scottish Government have taken over the responsibility of the British Transport Police north of the border. Many of us felt that that was a retrograde step too. I am a passionate home ruler, a passionate believer in devolution and supporter of the Scottish Parliament, but I believe that we should also recognise that, as long as we are part of the United Kingdom—which the people of Scotland want us to be—devolution should be to enhance and bring Government closer, but not to undermine the advantages of collective working across the United Kingdom. It seems to me that there will be circumstances where the transport police could be inhibited in their role in cross-border policing. Can the Minister give some clarification as to whether this instrument will affect that positively, negatively or not at all?

I do not have the capacity to go through the whole SI in detail, but there seem to be a number of issues that are really quite important, including to clarify how the devolved and reserved powers can work constructively together—which is why we are not opposing the instrument—but some clarification is nevertheless necessary of what that really means. There also needs to be an understanding, or perhaps appreciation, that the Scottish Government have learned a little bit about their excessive zeal in creating a national police force, which has led to quite considerable friction. I mention again the appearance of mounted police at highland league football matches and routinely arming police officers in rural villages. Things such as that are well within the devolved capacity of the Scottish Government but bring human rights issues into question, so they are not of some indifference to the United Kingdom Government, who have to answer if there are questions of human rights compromises by a devolved Government or Administration.

Having said that, and supporting the passage of the instrument, I would nevertheless appreciate it if the Minister could answer those questions.