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

Lord McAvoy Excerpts

Wednesday 29th November 2017 Grand Committee

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, the draft order laid before the House is made under Section 104 of the Scotland Act 1998, which allows for necessary or expedient provision in consequence of an Act of the Scottish Parliament. The order is being made to ensure that the policy set out in the Criminal Justice (Scotland) Act 2016 can be fully implemented. It was passed by the Scottish Parliament on 8 December 2015.

The 2016 Act contains a number of provisions which have been developed from the recommendations of Lord Carloway’s review of the Scottish criminal law and practice, which reported in November 2011. This review followed a UK Supreme Court decision in the case of Cadder that gave suspects a right to legal advice before questioning by the police in Scotland. In this context, the review aimed to modernise and enhance the efficiency of the Scottish criminal justice system, and its recommendations have led to a number of the provisions in the 2016 Act.

These include reforms of arrest and custody laws designed to provide flexibility for police in conducting investigations while ensuring fairness for suspects. It will also build on 2010 reforms to allow suspects access to a lawyer whether or not they are to be interviewed by the police. In addition, the Act specifically states that the police have a duty not to deprive people of their liberty unnecessarily. As a consequence of some of the measures introduced by the Act, it is necessary either to amend the law elsewhere in the United Kingdom or to make provision in relation to Scotland where the reforms apply to reserved matters.

Making such amendments is not within the competence of the Scottish Parliament, so it is necessary for this order to be laid before the United Kingdom Parliament. It is made under Section 104 of the Scotland Act 1998, which allows the UK Government to make legislative changes which are necessary or expedient in consequence of an Act of the Scottish Parliament.

The order makes provision about arrests effected both in Scotland and outside Scotland in connection with crimes committed in Scotland and the investigation of Scots law crimes and extradition matters in Scotland. Provisions in Schedule 1 will ensure that cross-border enforcement and assistance continues to work effectively. Where a Scottish warrant is executed in England, Wales or Northern Ireland, provisions in the 2016 Act on arrest procedure and rights of suspects will apply.

Schedule 2 covers the effects of the 2016 Act on “reserved forces”, namely the Ministry of Defence Police, the British Transport Police and the Civil Nuclear Constabulary. Schedule 3 relates to the impact of the 2016 Act on immigration, HMRC officers, designated customs officers and the National Crime Agency. Schedule 4 covers the application of the 2016 Act on persons subject to service law. Schedule 5 makes provision regarding a person arrested in connection with extradition proceedings.

Reserved forces exercising the powers and privileges of a police constable in Scotland will also be bound by a stop-and-search code of practice issued under Section 73 of the 2016 Act. The order amends the 2016 Act to ensure that the UK Government and reserved bodies subject to the terms of the code are fully consulted when any amendments to the code are being considered. The order also refers to a code of practice that will apply to investigative bodies reporting criminal offences in Scotland to the Crown Office and Procurator Fiscal Service.

This is a particularly wide-ranging and complex order that has required close working between the UK and Scottish Governments, Ministers and officials. As such, it shows how Scotland’s two Governments can co-operate effectively to make the devolution settlement work. I beg to move.

[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.

--- Later in debate ---

[Lord Duncan of Springbank]

Helpfully, apparently that is a matter for the usual channels, and I am not one of them, so I hope that that will be resolved in due course and that the noble Lord, Lord Foulkes, will find his satisfaction through that.

[Lord McAvoy]

I thank the Minister for giving way before he sits down. The Smith commission proposals were supported. There was a lively discussion and the situation of the British Transport Police was brought up, but it has been devolved. I wonder whether, not to alleviate the concerns of my noble friend Lord Foulkes but to address them, it would be procedurally possible for the Minister to undertake to raise this specific debate with his counterparts in the Scottish Parliament’s Government.

[Lord Duncan of Springbank]

That is a very good point indeed. I believe that I will be able to raise this very point both behind the scenes and with my counterparts north of the border, and then it will be discussed more fully in due course.