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

Lord Wallace of Tankerness Excerpts

Tuesday 12th July 2011 Grand Committee

Moved By

[Lord Wallace of Tankerness]

That the Grand Committee do report to the House that it has considered the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011.

Relevant documents: 24th Report from the Joint Committee on Statutory Instruments.

[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.

[Lord McAvoy]

My Lords, after 24 years in the Houses of Parliament I find it a bit of a shock to the system to be the Labour Party spokesperson on anything. I was expecting the doors to open and folk to come from miles around to have a laugh, but there we are. First, I thank the Minister for offering the services of his staff in briefing me on the orders. I would have taken that up, but I felt a twinge of conscience and a bit guilty that the Minister was prepared to inflict that on his staff. I am not sure what they have done to him, but I am grateful for the offer.

I start in reverse order with the adoption and children order. I certainly agree with the noble Lord, Lord Maclennan of Rogart, about the clarity of the Minister’s explanation. Even though I read the Explanatory Notes and the other literature, hearing the Minister speak was first class in getting a better and fuller understanding of what was being approved. However—as the saying goes—I have some questions. I realise from being here this afternoon that there is a practice of giving notice of questions. I was not aware of that or I would have done so. There are no trick questions; they may come on other occasions but not this evening.

This order brings consistency to the situation vis-à-vis Scotland and its part of the United Kingdom, so it seems routine, but no legislation should be rushed because mistakes happen. It seems to me that the Government are in such a state with their legislative programme that there is a heavy element of rush in the preparation and submission of legislation, but perhaps not the delay of months and years referred to by the noble Lord, Lord Maclennan of Rogart. Nevertheless, mistakes happen, and it seems that we have had a conveyer belt this afternoon. If anyone cares to look, a Written Answer to the noble Lord, Lord Grocott, in last week’s Hansard illustrated the number of times that the Government have broken conventions in terms of time. There seems to be a bit of a rush. Although paragraph 8 of the Explanatory Notes refers to “UK Government Departments” being consulted, there was no consultation elsewhere. I should have thought that on the issue of adoption there could and should have been wider consultation with professionals in the field. I was formerly a councillor in Strathclyde Regional Council which had one of the best social work departments in the whole of Europe. Nevertheless mistakes were made and incidents happened. I should have thought that there could have been more consultation.

One of the curiosities is that on pages 14 and 17 of the order there are Welsh language extracts. Is it because that is how it is presented by the Welsh Assembly or has it been inserted by the Government here? It would seem that there is a gap when it comes to Scottish matters; Scottish Gaelic should have been incorporated there as well. I am not a fanatic about Gaelic, but it is a recognised second language in Scotland, and if it can be encouraged, it should be recognised. The order is almost entirely technical and has our support.

Turning to the criminal procedure order, I have had some advice from the Law Society of Scotland. David Mundell MP advised the other place:

“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”.—[Official Report, Commons, Delegated Legislation Committee, 6/7/11; col. 4.]

I have heard from one or two others, as well as the Law Society of Scotland, who seem to maintain that the extension of the detention period from six hours to 12 hours with the option of a further 12 hours is disproportionate. This extension was argued on a number of grounds, one of which was that additional time would be required to secure solicitor access. The Association of Chief Police Officers in Scotland published data last month which showed that 83.5 per cent of detentions are for six hours or less, 15.7 per cent are for more than six but less than 12 hours, and 0.8 per cent are for more than 12 hours. I ask the Minister to outline the consultation process that came up with this time and to say whether it matches anything else so that I can make some kind of a judgment about whether it is standard, justified or just plucked out of a hat. I do not think that it was: it would be wrong to say that. Nevertheless, in the interests of transparency, it would be useful to have a response on that.

Another part of the Law Society of Scotland’s briefing echoes much of what the noble Lord, Lord Maclennan of Rogart, said about remuneration and the difficulties for solicitors who get involved in this type of thing. However, I will leave the lawyers to cry on somebody else’s shoulder, not mine.

[Lord Wallace of Tankerness]

My Lords, first and foremost, I congratulate the noble Lord, Lord McAvoy, on his maiden speech from the Labour Front Bench. He distinguished previous Labour Governments, but in a non-speaking role as a Whip. I welcome him to his post, and I am sure that, as he says, there will be many future occasions when we will engage in debate. I also thank my noble friend Lord Maclennan of Rogart and the noble Lord, Lord McAvoy, for their general support for the orders and for the important questions they raised.

I will pick up some of the procedural points with regard to this order in relation to the 2007 Act. It has taken so long—it is four years since the passage of the Act—because the Act was not brought into effect for some time after it was passed by the Scottish Parliament. Looking at the order, we see the amount of work that has gone in to trying to make sure that all the different pieces of legislation which are covered by it have been brought together. I am aware that a considerable amount of work has been done on that.

In my opening remarks, I referred to a stop-gap, temporary measure that was passed using the negative procedure earlier this year. That is repealed by this order now that we have the full provisions in place. A considerable amount of work goes on between the lawyers in my department, the Office of the Advocate-General, and the Scottish Government legal department, looking at issues when legislation comes forward. There is also a programme of work on Scotland Act orders to identify priorities in co-ordination between the United Kingdom and Scottish Governments. Both Governments feed into that programme, which leads to the orders that we take forward. Indeed, I think this morning an order was debated in another place that we will have the pleasure of looking at when we return in the autumn.

With regard to the point made by the noble Lord, Lord McAvoy, about Wales, it is my understanding that under the Welsh Assembly, some legislation now is in the Welsh language. It is reflecting that provision from the Welsh National Assembly that these provisions are in this order in Welsh. I have no doubt that if, at some stage, the Scottish Parliament passes a measure in Gaelic—that is on the heading of the primary or secondary legislation—that, too, would find its way into our orders.

I hear the point about the consultation and the Law Society. It has been a matter of routine that the Scotland Office was not consulted on orders which have been taken under the Scotland Act 1998. The majority of them are consequential to legislation which has been passed by the Scottish Parliament. Of course, the 2007 Act was well consulted on, deliberated on and debated as it went through its procedures in the Scottish Parliament. Substantially, this order gives it effect in a number of different ways in relation to United Kingdom legislation, which it was not possible for the Scottish Parliament to do. But the policy matters which are at the core were dealt with by the Scottish Parliament when the Bill went through and became an Act.

On the criminal procedure, publicly funded legal systems will be made available. The 2010 Act includes provisions to amend the Legal Aid (Scotland) Act to confer an order-making power on Scottish Ministers to make legal advice available to any person detained under the amended detention provisions. In such circumstances they may provide without reference to Section 8 of the Legal Aid (Scotland) Act 1986, which sets out the financial eligibility criteria for advice and assistance. The aim of the order-making power is to ensure that financial eligibility requirements would not act as an impediment to the availability of legal advice as a fundamental requirement of the new procedures. It is very obvious that if someone is brought in for detention and needs immediate access to a solicitor, suddenly to start filling in forms could act as an impediment to what is being sought to be achieved. It was considered to be impractical for a solicitor to have to try accurately to verify a suspect’s financial circumstances while they were detained. Of course, there was a need to ensure that all suspects can obtain legal advice. The ongoing, continuing discussions on the detail of the agreement to be reached between Scottish Ministers and the United Kingdom Government—it was agreed in principle that it will happen with the detail—is still to be worked out. When it is concluded it will follow on to this order when it goes through.

My noble friend Lord Maclennan of Rogart and the noble Lord, Lord McAvoy, raised the period of detention. It is perhaps useful to remind ourselves that the 2010 legislation was emergency legislation in the Scottish Parliament—I think that it was passed in a day. Prior to introducing the emergency legislation in the Scottish Parliament, the Scottish Government consulted with a number of stakeholders, including the Law Society of Scotland, the Crown Office and Procurator Fiscal Service, the Association of Police Chief Officers in Scotland, the Scottish Police Services Authority, the Scottish Legal Aid Board and the Scottish Court Service.

In particular, the Scottish Government consulted with a number of these bodies in respect of the decision to extend the period for which suspects may be detained by the police. During the consultation, ACPOS, the Scottish Police Services Authority and the Crown Office and Procurator Fiscal Service considered that an extension of some form was required, although the Law Society considered that any extension should not feature in the emergency legislation. Instead, the Law Society argued that options for change should be considered by a judicially led expert review. This matter is being considered by the Carloway review but the Scottish Government took the view that they did not consider that waiting until such time as the review reports, and reforms coming from the review are passed into law, was a viable option when there was already evidence that the six-hour period of detention in some cases would be too short, particularly in complex cases where a solicitor had to be brought in and, therefore, that underlay the decision to extend the time period.

This order seeks to put in terms of reserve functions, the UKBA and Her Majesty’s Revenue and Customs in exactly the same position with regard to the provisions as is the case with Scottish police officers. The purpose of the order is consistency, which is why we have used and adopted the same time periods as there are for the Scottish police. It is important that there is one set of rules which apply to the questioning of suspects in Scotland. Indeed, it may well be a joint investigation with the police and it would become very complicated if one body was operating under a different set of rules from the other. At the end of the day, the one prosecuting authority—the Lord Advocate and the Procurator Fiscal—will lead and take forward the prosecution.