Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011

Lord Maclennan of Rogart Excerpts

Tuesday 12th July 2011 Grand Committee

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I beg to move that the Committee considers the draft Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011. I shall also speak to the Adoption and Children (Scotland) Act 2007 (Consequential Provisions) (Amendment) Order 2011. The former order was laid before the House on 9 June and the latter on 10 June. I will provide an explanation of both orders.

The orders are made under Section 104 of the Scotland Act 1998, which provides that the Secretary of State can make such provision as is “necessary or expedient” in consequence of an Act of the Scottish Parliament. The Merits Committee has reviewed these orders and has not noted them as being of special interest.

I begin with the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011. This order is made in consequence of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, which for convenience I shall refer to as the 2010 Act.

The 2010 Act reformed Scots law in respect of persons being questioned by police constables in Scotland on suspicion of having committed an offence. In particular, the 2010 Act enshrined a right to legal advice for suspects prior to and during questioning by a Scottish police constable. It made provision for an order-making power in respect of legal advice and assistance for suspects wishing to exercise this right, and extended the period for which persons could be detained by a police constable in Scotland. The 2010 Act was enacted by the Scottish Parliament in response to the ruling of the Supreme Court in the case of Cadder v Her Majesty’s Advocate, with a view to ensuring that the law of Scotland is compatible with the European Convention on Human Rights.

The policy objectives of this order are two-fold. First, this order brings Scots law, in respect of persons questioned by Her Majesty’s Revenue and Customs and the UK Border Agency on suspicion of having committed a revenue and customs offence in Scotland, into line with the law applying to criminal investigations carried out by police constables in Scotland following enactment of the 2010 Act. The order seeks to deliver this policy objective by, first, enshrining in the Criminal Law (Consolidation) (Scotland) Act 1995 the right to legal advice for persons questioned by HMRC and UKBA on suspicion of having committed a revenue and customs offence in Scotland, and, secondly, by extending the period of time for which a person can be detained by HMRC and UKBA officers under the Criminal Law (Consolidation) (Scotland) Act 1995 from six hours to a 12-hour period of detention, with the potential to extend to 24 hours in certain circumstances with the appropriate authority.

As regards expanding Scottish Ministers’ power under the Legal Aid (Scotland) Act 1986 to make regulations disapplying the financial eligibility criteria for advice and assistance to HMRC and UKBA suspects, this provision will be underpinned by a ministerial agreement and administrative arrangement that the provision of legal aid for HMRC and UKBA suspects in Scotland will be on equivalent terms to the provisions made for legal aid in relation to persons detained by police constables in Scotland. It extends the right to access advice and assistance, without means testing, to HMRC and UKBA suspects by amending the Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2011; and by including HMRC and UKBA suspects in the duty which has been placed upon the Scottish Legal Aid Board by the Duty Solicitors Regulations 2011 to ensure the availability of advice.

The second policy objective of this order is to update the law in cross-border cases to bring parity between the powers of the Scottish police, HMRC and UKBA acting within Scotland and the powers of the Scottish police, HMRC and UKBA exercising cross-border powers of arrest and detention elsewhere in the United Kingdom. The 2010 Act amended the powers of Scottish constables only when detaining or arresting suspects in Scotland. The period for which Scottish constables, Her Majesty’s Revenue and Customs and UKBA can detain suspects in cross-border cases is now markedly out of step with the detention period permitted in Scotland following the coming into force of the 2010 Act.

Cross-border detention provisions in the Criminal Justice and Public Order Act 1994 and the Finance Act 2007—which applies, with modifications, the cross-border provisions in the 1994 Act to HMRC and UKBA cross-border cases—allow for the detention of suspects for only four hours where a suspect's detention commences in England or Wales; and for six hours where detention commences in Northern Ireland. This applies regardless of whether the suspect is taken for interview to a police station in England, Wales or Northern Ireland, or is taken back to a police station in Scotland. Cross-border detentions usually arise in relation to the most serious types of cases and the current detention period raises significant challenges due to the need to allow access to a solicitor before and during questioning, which has a negative impact on the time available to conduct effective investigations.

The 2010 Act ensures that suspects are able to obtain legal advice before and during questioning by the police in Scotland. This order ensures that the right to legal advice is available to suspects who are being questioned by Scottish constables, HMRC officers conducting revenue and customs investigations and UKBA designated customs officials conducting customs related criminal investigations in a cross-border scenario as well as in Scotland. This order brings the cross-border detention provisions for Scottish constables, HMRC and UKBA customs and revenue officers into line with the provisions in the 2010 Act, thereby ensuring consistency of approach for the detention and arrest of suspects throughout the United Kingdom in investigations carried out by Scottish police forces, HMRC officers and UKBA designated customs officials.

The order also ensures that when a suspect is to be transported to Scotland for questioning, their right to have another person informed of their arrest or detention arises at the point of arrest or detention. This differs from the position where a suspect is detained in Scotland or questioned in England, Wales or Northern Ireland where the right of intimation to another person arises upon arrival at a police station. It is considered more appropriate and proportionate to grant this right at the point of arrest or detention where a suspect is to be transported to Scotland, particularly where such transportation may take a number of hours. The order will specify that the entitlement to have intimation sent to a solicitor and a reasonably named person, as well as their right to have another person informed of their arrest or detention, arises at the point of arrest or detention. This amendment avoids the provision of these entitlements being delayed until arrival at a police station, as is the current position. This amendment is both necessary and expedient as a direct consequence of the amendments to the 2010 Act. It ensures that a suspect is detained in a manner which is compliant with their rights under the European Convention on Human Rights.

The order will extend the period of time for which a person can be detained under cross-border enforcement powers to 12 hours, with the potential to extend to 24 hours in certain circumstances, with the appropriate authority. As at present, detention will begin on arrival at a police station, either in Scotland or in another part of the United Kingdom, and the suspect must be transported to the police station,

“as soon as is reasonably practicable”.

While the 2010 Act ensured that the system of arrest and detention in Scotland is compatible with Article 6, as expressed by the Supreme Court judgment in the case of Cadder v Her Majesty’s Advocate, the Scottish Cabinet Secretary for Justice also announced a review of Scottish criminal law and practice, which is being led by Lord Carloway, a senior High Court judge. He is expected to report later this year.

In the context of Lord Carloway’s review into this matter, the United Kingdom Government consider that it is sensible to do all that they can until Lord Carloway reports and his findings can be acted on, and to ensure that reserved bodies carrying out reserved functions in Scotland can continue to do so effectively and in compliance with the Supreme Court judgment in Cadder.

Once the Carloway Review Reference Group reports its findings, it is likely that the provisions of the 2010 Act and this order will need to be reviewed. However, in the interim, this order will amend powers of detention to ensure that HMRC, the UKBA and the Scottish police can continue to effectively carry out their functions to investigate serious crime, both in Scotland and in cross-border cases, in compliance with the Supreme Court’s judgment in Cadder v Her Majesty’s Advocate.

Perhaps I may now set out the details of the second draft order we are considering, which is made in consequence of the Adoption and Children (Scotland) Act 2007—the 2007 Act—and regulations made under that Act. The 2007 Act restates and amends the law relating to adoption in Scotland. It also makes further provision in respect of the care of children in Scotland. The process for adoption is updated to allow unmarried and same-sex couples to make an application jointly to adopt a child. The process of assessing prospective adopters and placing children for adoption has also been updated and is now regulated by new regulations made under the 2007 Act.

In addition, the 2007 Act introduces the permanence order to create greater flexibility for children who are looked after away from their home or who require local authority supervision. This new order replaces parental responsibilities orders and freeing orders. Both those orders removed all parental rights and responsibilities from the child’s parents and vested them in the local authority with sole responsibility for the child.

The permanence order now gives the authority the right to determine where the child shall reside allowing authorities to place the child with foster carers, for example. But, at the same time, the courts may vest parental responsibilities and rights in other individuals—for example, foster carers or even the child’s parents. The permanence order will therefore be tailored to meet the needs of each child.

This order therefore makes amendments to legislation for England, Wales and Northern Ireland to ensure that the new orders and procedures introduced by the 2007 Act will be given the appropriate recognition and effect. It does not make any new substantive policy changes: it simply updates existing legislation to take account of the changes in Scottish adoption law. The aim is to preserve the effect of current legislation in England, Wales and Northern Ireland and current cross-border processes. For example, many of the amendments relate to social security legislation which relies on references to Scottish adoption legislation to determine the status of claimants. It is appropriate therefore, that benefits legislation is updated so as to include the status of prospective adopters or adopted children under the new legislation where appropriate.

In order to ensure that existing cross-border arrangements are preserved to allow orders affecting adopted or looked-after children to be recognised and given effect where appropriate, the order proposes amendments to legislation for England, Wales and Northern Ireland in respect of the adoption and care of children. Again, the amendments are purely consequential on the changes made by the 2007 Act and its accompanying regulations. This ensures that, where an adoption application is being heard by an English court and the question of parental consent to adoption has already been determined by the Scottish courts, the English court may be satisfied that this part of the adoption process has already been dealt with. Parallel provision allowing the Scottish courts to recognise a decision of an English court on the issue of parental consent in advance of an adoption application is provided for in the Scottish 2007 Act.

I should also make reference here to the previous Section 104 order which modifies provisions in the Adoption and Children Act 2002 and the Northern Ireland adoption order to allow courts to give effect to Scottish permanence orders pending the textual changes which are made in this draft order. This order now makes the necessary textual amendments, which will allow those orders to have effect where appropriate.

Both these orders demonstrate the Government’s commitment to working with the Scottish Government and the Scottish Parliament to make the current devolution settlement work successfully for Scotland as part of the United Kingdom. I hope that your Lordships will agree that these orders are a sensible use of the powers in the Scotland Act and that the practical results are something to be welcomed. I therefore commend both these orders to the Committee. I beg to move.

[Lord Maclennan of Rogart]

My Lords, I begin by welcoming the clarity of my noble friend's explanation of the two orders. I also thank him for the very helpful Explanatory Memorandum that sets out their purposes and consequences. There are, consequentially, very few questions that I will raise, because most of the points have been very clearly made.

On the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011, have the recent United Kingdom changes in the proposed availability of legal aid affected, or will they affect in any way, the availability of legal aid to those who are suspected of serious crimes such as those mentioned in the Explanatory Memorandum? I note that powers to make regulations disapplying the financial eligibility criteria are referred to, as well as the criteria for giving advice and assistance to such suspects. It is also stated that the provision will be underpinned by a ministerial agreement and an administrative arrangement, and that the provision of legal aid to HMRC and UKBA suspects will be on equivalent terms to the provisions made for legal aid in relation to persons detained by police constables in Scotland. Will the Minister explain whether that agreement has been arrived at and is waiting for its effectiveness only on the passage of this order, or whether it has yet to be agreed—and, if so, with whom? The provisions on detention seem to be eminently sensible. It would be of some interest to know whether they are reciprocal. Does this mirror what happens if suspects are taken into custody by police constables in England?

So far as concerns the second order, again there are very few questions that have not been addressed. I would be interested to know what gave rise to the awareness of the desirability of making this change, which will result in orders being made under the 2007 Act to clarify that the 1978 Act does not apply in present circumstances. Whereas in the case of the first order there was a passage merely of weeks before it was laid, in the case of the other there has been a passage of four years. How is that explicable?

I will ask a procedural question. When changes are made by the Scottish Parliament or Government, is it automatically part of the dialogue between the Scotland Office and these institutions to consider any consequential changes that ought to be made by this Parliament under the provisions of the Scotland Act? Did this have to be drawn to someone's attention? Is it the sort of issue that the Scottish Law Commission might consider on a continuing basis or is it such a relatively minor matter—although the consequences are not unimportant—that difficulties became apparent only in seeking to take into account particular cases of adoption that arose after the law was changed? I recognise that this procedural question does not in any way take exception to the outcomes, which seem eminently sensible.