Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2011

Lord Wallace of Tankerness Excerpts

Wednesday 7th September 2011 Grand Committee

Moved By

[Lord Wallace of Tankerness]

That the Grand Committee do report to the House that it has considered the Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2011.

Relevant document: 25th 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 draft order laid before the House on 22 June 2011 be considered. Perhaps I may provide the Committee with a brief explanation of what the order is intended to achieve. It 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.

In this case, the order is laid in consequence of the Criminal Justice and Licensing (Scotland) Act 2010, which I shall refer to as the 2010 Act. The Merits Committee of your Lordships' House has reviewed the order and has not noted it as of special interest. The 2010 Act makes a number of changes to the law, and the order relates to some of the changes made to sentencing, criminal procedure, criminal law and criminal justice. The 2010 Act introduced a new community sentence in Scotland, known as the community payback order. This order will enable the transfer of community payback orders imposed by a court in Scotland to England and Wales or Northern Ireland where an offender resides or intends to reside there. For an offender who subsequently proposes to move or has moved to England and Wales where an order is already in place, this order provides for the transfer of community payback orders and allows the court to impose a community payback order on an offender who resides or will reside in England and Wales. In both scenarios, the court must not impose the order unless the offender is aged 16 or older. In addition, the court must be satisfied that arrangements had been made or can be made for the offender to comply with the requirements imposed by the order in accordance with arrangements that exist in the relevant area for offenders. The court must also be satisfied that either a responsible officer will be appointed or that the offender will be supervised by a relevant probation service.

The analogous order to a Scottish community payback order in England and Wales is a community order—or, for offenders aged between 16 and 18, the youth rehabilitation order. When transferred, the community payback order has effect in England and Wales as if it were a community order made by a court there.

The order we are considering today contains almost identical provision for cross-border transfer of the community payback order in relation to offenders who reside or will reside in Northern Ireland, with a number of necessary modifications. In Northern Ireland, the corresponding order to the Scottish community payback order will be a probation or community service order under the Criminal Justice (Northern Ireland) Order 1996.

The 2010 Act also sets out what use can be made of various sources of forensic data about individuals who are arrested or detained under suspicion of having committed an offence. The order will allow forensic data, as well as data taken from terrorist suspects, to be used for the reserved purpose of national security and for the purposes of a terrorist investigation. The provisions clarify that forensic data taken for reserved purposes can also be used for specific devolved purposes. The provisions are a valuable tool for the prevention and detection of crime in Scotland.

The 2010 Act also ensures that a person will be made subject to the sex offender notification requirements when they are convicted of the offence of possession of extreme pornography. The order extends that as a matter of law in England and Wales and Northern Ireland. That ensures that a person made subject to the notification requirements as a result of a conviction for possession of extreme pornography in Scotland cannot evade the requirement to register by moving elsewhere in the United Kingdom.

Finally, the 2010 Act makes a number of improvements to the operation of the foreign travel orders. The order extends the Scottish offence of breaching the requirement to surrender passports under the foreign travel order to England and Wales and Northern Ireland. We believe that it is a sensible measure given the increased mobility of offenders, who try to avoid their obligations by leaving one jurisdiction for another, and it also addresses a growing international concern about sex tourism.

The order demonstrates the Government’s commitment to working with the Scottish Government to make the devolution settlement work. I hope that the Committee will agree that the order is a sensible use of the powers in the Scotland Act and that the practical results are to be welcomed. I therefore commend the order to the Committee.

[Lord McAvoy]

My Lords, this is the second time that I have responded to a statutory instrument on behalf of the Opposition. For the second time, I place on record my appreciation for the co-operation and understanding of the noble and learned Lord, Lord Wallace of Tankerness, in offering me assistance in dealing with this. The behaviour of the noble and learned Lord is always an example to me of how I should aspire to be in this House, but that may take some time.

I place on record my appreciation for the contact from the Minister's office offering that help. I can assure the young lady who contacted me that although I may not have needed assistance this time, I am sure that at some point I shall be knocking on her door instead of her coming to me first.

The order is sensible. Following last night’s deliberation on the Scotland Bill, it shows the sensible co-operation that can and does take place since devolution has been brought to Scotland. I am quite impressed by how the two systems can work together to ensure that there is no avoidance of the community payback scheme. That is first class.

The Minister has explained the order well. However, in the other place, the honourable Member who has the honour to represent the Royal Borough of Rutherglen, Mr Tom Greatrex, asked some questions for clarification about the guidance, the collection and use of the forensic data that will be transferred between the north and the south and how the arrangements would work. The Minister undertook to write to the Members of that Committee. Can we have an update on that? Can the noble and learned Lord, Lord Wallace of Tankerness, clarify that for the Committee?

[Lord Wallace of Tankerness]

First, I thank the noble Lord, Lord McAvoy, for his generous remarks. Indeed, it helps the Committee’s consideration of these orders to work if there is an exchange of information.

The noble Lord asked about guidance, picking up the points made by his illustrious successor representing the Royal Borough of Rutherglen, Mr Greatrex. The position is that the Scottish Government have published guidance on all the forensic data provisions of the 2010 Act, including Section 82, which is the section that gives rise to this part of the order.

The Home Office and the Government are in the early stages of working with the relevant law enforcement authorities to develop specific guidance in the forensic data matters arising from the Protection of Freedoms Bill and indeed the wider use of forensic data. My right honourable friend the Parliamentary Under-Secretary of State in the Scotland Office, Mr Mundell, has written to Mr Greatrex confirming that,

“the Home Office and the Scottish Government are working with the relevant law enforcement authorities (including the Serious Organised Crime Agency and HM Revenue and Customs) with the intention of developing specific guidance on forensic data matters arising from both the Protection of Freedoms Bill”—

which is currently before the other place—

“and the wider use of forensic data. Part 1 of the Schedule to the Criminal Justice and Licensing Section 104 Order amends the”,

Criminal Procedure (Scotland) Act 1995 in Scotland,

“to avoid operational confusion and ensure that there is a clear legal basis for the retention and use of forensic data in Scotland for both reserved and devolved purposes”.

The Protection of Freedoms Bill will also impact on this area because of the,

“provisions in Scotland under the Criminal Procedure (Scotland) Act 1995”,

as amended by the Act that triggers this order.

The other point that Mr Greatrex raised related to the foreign travel orders. My right honourable friend’s letter says:

“the latest version of guidance produced by the Association of Chief Police Officers in Scotland … relative to the management of registered sex offenders is subject to continual monitoring and review in light of developments in the law and in policy and practice”.

My right honourable friend is advised that,

“This guidance is currently being amended to take account of the amendments made to the … regime”,

as a result of the primary legislation this order. I understand that the guidance will be made available to the police in good time. I hope that that gives an explanation to the points raised by the noble Lord, and I commend the order to the Committee.

Motion agreed.