Air Weapons and Licensing (Scotland) Act 2015 (Consequential Provisions) Order 2017
Debate between Lord Hope of Craighead and Lord Dunlop(7 years, 8 months ago)
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Lord Dunlop
I thank all noble Lords who have taken part in this short debate for their general support for the order. Perhaps I could take some time to address specifically the substantive points that the noble Earl, Lord Kinnoull, has raised. He essentially raised two main points: the first relates to whether the regime is proportionate and the second to whether the Section 104 process could be used to ask the Scottish Parliament to think again about this or any other measure.
On the first point, we need to accept that responsibility for the regulation of certain air weapons in Scotland is now a matter for the Scottish Parliament and Scottish Ministers. The Scottish Government carried out detailed consultation on the main air weapon licensing proposals before the Air Weapons and Licensing (Scotland) Bill was introduced. The issue of air weapons licensing has been fully debated in the Scottish Parliament, and it is absolutely right that Scottish Ministers are held to account for the decisions they take by the elected representatives in that Parliament. Of course, UK government departments with responsibility for the relevant reserved legislation, notably the Home Office, which this order affects, were consulted during its drafting and it was approved by them.
The appropriateness of the new regime is an important issue. I understand that the Scottish Government worked closely with the Police Service of Scotland and, notwithstanding what the noble Earl said, with representatives of the main shooting organisations to ensure that the new licensing processes are as familiar as possible and appropriate to the lethality of the weapons affected. For example, there are currently more than 51,000 firearm or shotgun certificate holders in Scotland and it is expected that the majority of them, like the noble Earl, will also hold air weapons. So checks on existing firearm or shotgun certificate holders are not duplicated if they also apply for an air weapons certificate. Existing certificate holders can apply for a coterminous air weapons certificate to align with their existing licence.
The noble Earl mentioned the £72 fee for the full five-year air weapons certificate. There is also a reduced fee of £5 for firearm or shotgun holders who want to align their certificates to expire at the same time. Home visits to applicants will be required in only a small number of cases. Similarly, there will not be an automatic requirement for background medical reports on air weapons applicants; these will be required only in a small number of cases. As a result, the impact on NHS resources should be minimal. While the licensing regime is founded on the pre-existing firearms legislation, I hope that the examples I have given demonstrate the efforts that have been made to ensure the provisions are appropriate.
Turning to the noble Earl’s second point, it would not be an appropriate use of the Section 104 process to force the Scottish Parliament to think again about legislation it has passed in an area of its own competence, and which is now in force. We are today merely looking at consequential amendments to reserved legislation and were we to decline to pass this order, it would lead to gaps in the law. It would also set a very unhelpful precedent for managing intergovernmental relations—a subject in which I know the noble Earl takes a close interest—where mutual co-operation is so important, not least when it comes to reserved legislation that impacts on the devolved settlements or the devolved competence of Scottish Ministers.
The issue of pawnshops was raised. The licensing regime regulates trade in air weapons and to trade in those weapons, you must be a registered firearms dealer. Pawnshops are not registered firearms dealers, so this matches the existing Firearms Act 1968 position.
I was interested to hear the history of the noble Lord, Lord McAvoy, in relation to pawnshops. Consultation and making pawnshops aware of this legislation and their duties under it are obviously a matter for the Scottish Government. I do not have at my fingertips what work has been done to make them aware of it, but I am happy to follow up on that.
The noble and learned Lord, Lord Hope of Craighead, mentioned an exclusion. I am not sure I have the detail on this, but if I do not have it to hand I will be happy to write to him. I think it mirrors the position of other firearms in the 1968 Act, but I am happy to clarify that further.
Lord Hope of Craighead
If I may return to the point I raised earlier, if the offence is committed by the owner of the pawnshop, it seems odd that the authorities have no means of taking possession of the weapon. I would have thought it would be very sensible if they could. However, I quite understand that I am asking a question that may not be capable of being answered immediately. If the Minister could write to me later, I would be very happy with that.
Lord Dunlop
I think that issue came up when this order was debated in the House of Commons. If I have got this wrong, I will clarify it, but if the courts find that the weapon is wrongly in someone’s possession then clearly it is a matter for them to confiscate that weapon. It would be normal practice for the court to order the forfeiture or confiscation of a weapon, which would be securely destroyed by the authorities in a way that would put the weapon out of use. However, I am not sure that that is the circumstance the noble and learned Lord is referring to, so I will be happy to write to him to clarify the point.
Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (Consequential Provisions and Modifications) Order 2016
Debate between Lord Hope of Craighead and Lord Dunlop(8 years ago)
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The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Dunlop) (Con)
My Lords, the purpose of the Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 is to modernise the system of fatal accident inquiries—often referred to as FAIs—in Scotland. The Act is in line with the recommendations of the noble and learned Lord, Lord Cullen of Whitekirk, following his independent review of FAI legislation in 2009. The Act received Royal Assent on 14 January 2016, and the order before your Lordships is made under Section 104 of the Scotland Act 1998. The Section 104 mechanism allows for necessary or expedient legislative provision to be made by the UK Parliament in consequence of an Act of the Scottish Parliament. Certain provisions in the 2016 Act will be given effect in the rest of the UK where that is required, and will make expedient substantive legislative provision in relation to matters reserved to Westminster.
Noble Lords may be aware that fatal accident inquiries are held to establish the circumstances surrounding certain deaths occurring in Scotland. Mandatory FAIs must be held when someone dies in legal custody, or when someone dies as the result of an accident related to their work. FAIs are broadly equivalent to coroners’ inquests in England and Wales, which are independent judicial inquiries conducted into the facts surrounding a death that is sudden, unexpected or unnatural.
Among the changes brought forward by the 2016 Act is one to extend the categories of death in which it is mandatory to hold a fatal accidents inquiry in Scotland. The categories for which mandatory FAIs will be held have been extended to include deaths of children in secure accommodation and in police custody, irrespective of location. These changes relate to devolved matters and so it is right that the Scottish Parliament has legislated for them. This Section 104 order will enact changes to reserved matters to ensure they are consistent with the new Act of the Scottish Parliament. It also makes some substantive policy changes, including making clear that it will become mandatory for an FAI to be held into deaths of service personnel in the course of active duty in Scotland. Until now, this has been at the discretion of the Lord Advocate.
The order also proposes that a military death in the offshore area of the continental shelf adjacent to Scotland would require a mandatory FAI. This brings legislation in Scotland on investigations into military deaths in line with the rest of the UK to the extent that every military death in Scotland will, in future, be subject to a judicial inquiry. This new category of mandatory FAIs will be treated in similar fashion to others—for example, in relation to the power of the Lord Advocate to decide that an FAI is not required because the circumstances of death have been sufficiently established in other proceedings.
These proposed changes have taken on added significance in recent days following the death of Lance Corporal Joe Spencer of 3rd Battalion The Rifles at RAF Tain. Lance Corporal Spencer tragically died near Inverness, three weeks ago today, on Tuesday 1 November, in what the Ministry of Defence has described as a “live fire accident”. I am sure that I speak for the whole House in offering our condolences to Lance Corporal Spencer’s family, friends and colleagues. In legal terms, the mandatory requirement for a fatal accident inquiry, proposed in this order, is not retrospective. Even if the death is found to have been in the circumstances provided for, it will not apply to the death of Lance Corporal Spencer. Instead, the existing arrangements under the Fatal Accidents Act 1976 will apply, and it will be within the discretion of the Lord Advocate to rule on whether an FAI is held.
This sad incident, none the less, highlights the importance of the order and illustrates why the UK and Scottish Governments, Ministers and officials, have worked closely together to bring it about. I hope that your Lordships will agree that this collaboration represents another example of the UK Government’s commitment to work with the Scottish Government to make the devolution settlement work effectively. I beg to move.
Lord Hope of Craighead (CB)
My Lords, I join the Minister in expressing condolence to Lance Corporal Spencer and his family for that tragic incident.
I welcome what the noble Lord has said about the introduction of a mandatory FAI in the case of servicemen who die in Scotland or outside the mainland in territorial waters. If these deaths occur in England, there is a mandatory inquest. One of the problems has been the imbalance between the mandatory system in England and Wales and the discretionary system in Scotland. It makes good sense that they should be on the same basis.
Another point worth noting is that the FAI system is very well equipped for a thorough investigation as to the reason for the death, which is not always available in inquests because of the way in which they are organised in England and Wales. It has caused problems for the Supreme Court in dealing with cases which arise overseas, such as deaths occurring during the situation in Iraq. The Scottish system is well equipped and there is no question that introducing a mandatory system provides a very sound basis for finding out exactly why these tragic incidents occurred and also making arrangements to avoid, if possible, a repetition of the same event. I welcome very much what the Minister has said.
Human Trafficking and Exploitation (Scotland) Act 2015 (Consequential Provisions and Modifications) Order 2016
Debate between Lord Hope of Craighead and Lord Dunlop(8 years, 1 month ago)
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The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Dunlop) (Con)
My Lords, it is appropriate that we should be considering this order today, as today is Anti-Slavery Day. The order before your Lordships is made under Section 104 of the Scotland Act 1998, which allows for “necessary or expedient” changes to UK legislation in consequence of an Act of the Scottish Parliament. The Act in this case is the Human Trafficking and Exploitation (Scotland) Act 2015. To summarise, the objective of the Act is to consolidate and strengthen the existing criminal law in Scotland against human trafficking and exploitation and to enhance the status of and support for the victims of these crimes. After passing through the Scottish Parliament, the Act received Royal Assent on 4 November 2015.
The 2015 Act is in six parts. Part 1 introduces two new offences: a new single offence of human trafficking for all types of exploitation and a new offence of,
“slavery, servitude and forced or compulsory labour”.
These replace existing offences in Scots law. The maximum penalty for human trafficking has increased from 14 years to life imprisonment. Part 2 includes provision on the support and assistance to which adult and child victims of human trafficking are entitled. The remaining parts deal with, among other things, the confiscation of property and proceeds of crime, in Part 3, and the introduction in Part 4 of two new preventive and risk orders in Scotland. In Part 5 the Act also places a duty on Scottish Ministers to prepare a trafficking and exploitation strategy.
As I said, if passed, this draft order would amend UK legislation as a consequence of the Act. The order updates existing UK legislation to give the 2015 Act full effect: to reflect the new Scottish offences, to ensure that the relevant powers of UK immigration officers are updated in line with the new offences so that they are able to detain vehicles, ships or aircraft where a person has been arrested for the offence of human trafficking, and to reflect new powers conferred on the police under the 2015 Act.
The order will, for example, update references to existing Scottish offences in relevant legislation applying in other parts of the UK. These changes, primarily to the Modern Slavery Act 2015 but also to the Immigration Act 1971 and the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, will refer to the new single offence of “human trafficking” and the new offence of slavery, servitude and forced or compulsory labour in Scottish legislation and the repeal of existing offences.
The order will enable English and Welsh courts to enforce the two new Scottish trafficking and exploitation prevention and risk orders, which will ensure joined-up and robust enforcement. It will also implement the policy intention of some aspects of the Modern Slavery Act 2015 that relate to Scotland by ensuring the scope of the UK’s Independent Anti-Slavery Commissioner’s work and the duty of large companies to report on transparency in supply chains are both updated so that, in Scotland, these flow from the new Scottish offences.
The UK and Scottish Government Ministers and officials have worked closely together to ensure that this order makes in an effective manner the necessary amendments to UK legislation in consequence of the Act of the Scottish Parliament. I believe that this order demonstrates the UK Government’s continued commitment to working with the Scottish Government to make the devolution settlement work.
I hope noble Lords will agree that this order is an appropriate use of the powers in the Scotland Act and that the practical result is something to be welcomed. I commend the order to the Committee.
Lord Hope of Craighead (CB)
My Lords, I am very grateful to the Minister for his careful introduction to this draft order. I should point out at the very outset that it goes without saying that I am entirely in sympathy with the aims of the Act itself and the draft order for the reasons which the noble Lord has given. The reason I have risen to my feet is to draw attention to two problems with the wording of Article 2, which deals with the detention of a “vehicle, ship or aircraft” in circumstances where a person has been arrested and there are “reasonable grounds” for thinking that it might be forfeited. The article itself is very well laid out and extremely clear in its terms, and it is only because of the clarity of the terms and the way it is laid out that two matters have come to my attention which I respectfully suggest may require further thought.
The broad structure is to identify first the power to detain in paragraph (1) of Article 2. The second is paragraph (2) of Article 2, which says that the,
“vehicle, ship or aircraft may be detained”,
until certain things have happened. It is important for the protection of the individual who owns the article in question, be it a vehicle, ship or aircraft, that the date at which the detention comes to an end—if, indeed, it is to be released from detention—is clearly identified. One has in mind, of course, Article 1 of Protocol 1 to the European Convention on Human Rights, which gives a right to the peaceful enjoyment of one’s possessions, of which one may be deprived only in the public interest and subject to conditions prescribed by law. This is fulfilling the requirement that the conditions should be prescribed by law and it is important that they should be properly set out.
If one works through Article 2(2), one sees that the detention may come to an end when a decision is taken as to whether or not to begin solemn proceedings or, if solemn proceedings are begun against a person arrested for the offence, until certain things happen. I have no complaint about sub-paragraph (a); it is sub-paragraph (b) that begins to open up some possible points of difficulty. Where solemn proceedings are begun, they may result in the acquittal of the individual, which is set out there. That indeed would be a point at which the article would be released from the detention. Heading (ii) refers to conviction and identifies correctly that the question of whether the article is released from detention will depend on whether the High Court or the sheriff, as the case may be,
“decides whether or not to order forfeiture”.
When that decision is taken, if it is not to order forfeiture, it is clear that the detention comes to an end. The problem arises when one looks at heading (iii), which uses the phrase “proceedings are otherwise concluded”. Very properly, the drafter has gone on to seek to identify the stage at which proceedings are otherwise concluded. It begins by saying:
“For the purposes of paragraph (2) … solemn proceedings begin”—
in well-understood circumstances where there is a first appearance or the indictment is served. I have no problem with that part of the article. The problems arise when looking at paragraph (3)(b), which says that,
“proceedings are taken to be otherwise concluded if … the proceedings are deserted simpliciter”.
That is a very clear point of time. When the Crown deserts proceedings simpliciter they are brought absolutely to an end, there are no further proceedings and it is perfectly proper that the article should no longer be detained. It identifies the point of time very accurately.
Under heading (ii), however, we are dealing with a different kind of desertion of proceedings, “pro loco et tempore”, which is a phrase used in the Scottish courts for the situation where the prosecutor decides that the case cannot proceed for the time being because, for example, the witness is seriously ill or absent and the Crown simply cannot lead the evidence needed to enable the proceedings to go on. The judge or the sheriff, as the case may be, has to decide whether it is proper that proceedings should be stayed temporarily for that purpose. He may refuse to do that, in which case it may be that the Crown is driven to deserting the proceedings simpliciter, but we are dealing with a situation where a decision is to accede to the Crown’s request that the proceedings be deserted “pro loco et tempore”, and,
“no further trial diet is appointed”.
The problem with that concluding phrase is that it leaves in the air the date at which one knows for certain that there will be no further trial diet. Under the Scottish system, the prosecution is entirely in the hands of the Lord Advocate. With great respect, I suggest that it might be better to clarify in some way the point of time at which one can be certain that no further trial diet will be appointed. That is frequently done by the Crown Office writing to the accused saying that it has decided to take no further proceedings. If a letter of that kind is written, it binds the Crown not to proceed any further and the date of the letter is be the date on which one knows for certain that the vehicle, ship or whatever it is should no longer be detained. The better way in which to phrase it might be for a certificate by the Lord Advocate himself or herself to be obtained which would identify his or her decision that there should be no further proceedings. That would achieve absolute clarity and ensure that the decision was ultimately taken by the law officer. Given the importance of what we are dealing with, which is really a very serious crime indeed, it would be best to obtain his or her decision that there should be no further proceedings.
The same point arises in paragraph (4), where we are dealing with three things that are added together. First,
“the indictment falls or is for any other reason not brought to trial”.
Secondly,
“the diet is not continued, adjourned or postponed”,
and, thirdly,
“no further proceedings are in contemplation”.
I do not have any problem with the first two, but with the last one, how does one know that,
“no further proceedings are in contemplation”?
Again, the suggestion is that the best way of ensuring certainty about that would be to obtain a certificate from a law officer—preferably the Lord Advocate—which would identify the decision at that level that there should be no further proceedings.
There are some situations in which a statute intervenes to say that if proceedings are not taken within a given period of time the indictment necessarily falls. In summary proceedings there is a cut-off date of, I think, six months—it may be 12 months—but when one is dealing with proceedings on indictment, as we are here, there is generally no absolute cut-off date in Scots law. I am subject to correction but I do not think that the statutes which we are dealing with as background to this order actually lay down a period of time within which the indictment must be brought. One is dealing with this problem in an area where there is no statutory backing to give a certain date at which the detention of the vehicle or whatever it is should be brought to an end, and therefore something has to be written into the order to make this clear.
I emphasise that I am not in any way raising these points to cause problems for the Minister. However, I suggest that in the interests of everybody it is better to be quite sure that one has identified correctly a cut-off date at each of the various stages with which this order is dealing. Article 2 has identified some of them perfectly correctly in accordance with Scots procedure, but in the two paragraphs that I have identified, in Article 2(3)(b)(ii) and Article 2(4)(c), I suggest that there is a lack of clarity and that it would be better for the Minister to take time and advice to see whether that clarity can be provided.
Scotland Bill
Debate between Lord Hope of Craighead and Lord Dunlop(8 years, 9 months ago)
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Lord Dunlop
I absolutely stand by what I said earlier. There may be some aspects of borrowing that could be done through secondary legislation, and that will be made clear when we agree and publish the fiscal framework.
Lord Hope of Craighead
Before the Minister sits down yet again, I am not quite sure from his explanation that he has fully taken on board the points made by the noble Earl, Lord Kinnoull, and me about the nature of this legislation—in other words, that the purpose of the legislation is to give effect to the Smith commission report. What concerns us is the opportunity that the provisions as framed—and, indeed, as forecast by the Minister—would give for straying outside the scope of the commission. I do not know whether the Minister’s brief has really addressed that point. If not, perhaps he will be kind enough to say that he will give further thought to it. It is an important matter because we really need to keep faith with the Government’s undertaking when they introduce legislation as to what it is all about.
Lord Dunlop
I will certainly give further thought to what the noble and learned Lord has said and come back to him on it.
Lord Hope of Craighead
I am sorry to intervene on the same point but we have today debated Part 7, in which Clause 68 appears. I am not quite sure in which order it will appear on Report. That affects what we do in terms of tabling further amendments. Will it be in the first stage of Report or the second?
Lord Dunlop
This obviously has to be discussed through the usual channels but my understanding is that we will consider the Bill on Report in the same order that we have considered it in Committee.