2nd Report, 2010 (Session 3)

Legislative consent memorandum on the Crime and
Security Bill (LCM(S3) 27.1)

Remit and membership

Remit:

To consider and report on (a) the administration of criminal and civil justice, community safety, and other matters falling within the responsibility of the Cabinet Secretary for Justice and (b) the functions of the Lord Advocate, other than as head of the systems of criminal prosecution and investigation of deaths in Scotland.

Membership:

Bill Aitken (Convener)
Robert Brown
Bill Butler (Deputy Convener)
Angela Constance
Cathie Craigie
Nigel Don
James Kelly
Stewart Maxwell

Committee Clerking Team:

Andrew Mylne
Anne Peat
Andrew Proudfoot
Christine Lambourne

Legislative consent memorandum on the Crime and
Security Bill (LCM(S3) 27.1)

The Committee reports to the Parliament as follows—

Background

The Crime and Security Bill

1. The Crime and Security Bill is a UK Government Bill, introduced in the House of Commons on 19 November 2009.¹ The Bill contains a range of policing, crime and security measures intended to tackle, amongst other things, violence, anti-social behaviour and financial exploitation.

2. While the Bill mainly applies to England, Wales and Northern Ireland, a number of provisions also apply to Scotland. These include some making provision on devolved matters or conferring new powers on Scottish Ministers—

• clauses 39 and 40 and the Schedule, which amend the Private Security Industry Act 2001 (“the 2001 Act”) and, like that Act, extend to the whole of the United Kingdom; and
• clause 45 (commencement), which provides that clauses 39 and 40 come into force, so far as extending to Scotland, on such day as the Scottish Ministers appoint, by order, after consulting the Secretary of State.

The Sewel Convention

3. Under the Sewel Convention, the UK Parliament does not normally legislate on devolved matters, or alter the executive competence of Scottish Ministers, unless the Scottish Parliament has given its consent (by agreeing to a legislative consent motion). The Crime and Security Bill engages the Convention by virtue of the changes it makes to the 2001 Act as well as the new order-making powers it confers on Scottish Ministers.

4. Under the Convention, the Parliament should normally signify its consent before the final amending stage in the House of introduction – which, in this instance, means the Report Stage in the House of Commons. It is not yet known when this will take place.²

5. The Parliament’s procedures require any legislative consent motion to be preceded by the lodging of a legislative consent memorandum and its consideration by a committee.

The legislative consent memorandum

6. The Cabinet Secretary for Justice, Kenny MacAskill MSP, lodged memorandum LCM(S3) 27.1 on 3 December 2009.³

Scrutiny of the memorandum

7. The memorandum was referred to the Justice Committee as lead committee. It was also considered by the Subordinate Legislation Committee by virtue of the power conferred on Scottish Ministers.

8. At its meeting on 15 December 2009, the Justice Committee agreed to issue a call for written evidence on the legislative consent memorandum. Of the four submissions that were received,⁴ only the one from Victim Support Scotland commented on the provisions subject to the Sewel Convention, saying it supported the new licensing arrangements for the private security industry. That submission and those from Children in Scotland and GeneWatch UK raised concerns about other clauses in the Bill that either do not extend to Scotland or relate to reserved matters. These concerns are covered later in this report.

9. The Subordinate Legislation Committee reported on the memorandum on 18December 2009 (54th Report, 2009).⁵ The Committee was content with the proposed commencement provision in clause 45. It was also content with the power in new section 4A(2)(c) of the 2001 Act (inserted by clause 39 of the Bill) which will allow Scottish Ministers, by order, to make particular activities undertaken by the private security industry subject to the licensing regime established by that section; but, in doing so, the Committee drew attention to two concerns about clause 39 which are covered later in this report.

10. At its meeting on 19 January 2010, the Justice Committee took oral evidence from Fergus Ewing MSP, Minister for Community Safety, Elizabeth Sadler, Head of Organised Crime Unit, Police Division, and Kevin Gibson, Scottish Government Legal Directorate.

Issues raised by the Subordinate Legislation Committee

11. During the evidence session with the Justice Committee, the Minister was questioned about concerns raised by the Subordinate Legislation Committee in relation to clause 39 of the Bill.

12. New section 4A(2)(a) and (b) of the 2001 Act introduces a mandatory licensing regime for persons engaging in vehicle immobilisation or the restriction and removal of that vehicle. The Subordinate Legislation Committee believed that the provisions do not properly take into account the position in Scotland where vehicle immobilisation on private land is illegal. The Committee’s view was that it does not make sense to make provision for a licensing regime for something that is illegal in Scotland, particularly when the power in section 4A(2)(c) could be used to make such activity subject to the licensing regime, should it be made legal in the future.

13. Kevin Gibson explained the Scottish Government’s approach by saying—

“It is certainly an unusual approach, but it is consistent with the 2001 Act. It was thought to be a more straightforward way of amending the legislation. I think that a different approach would have required much more extensive amendment of the 2001 Act than is proposed.”⁶

14. The second issue the Subordinate Legislation Committee highlighted was that, while Scottish Ministers can make particular activities subject to the new licensing regime, this will be subject to the power of the Secretary of State (under new section 4B(1)) to prescribe circumstances in which persons carrying out such activities without a licence would not be guilty of an offence. The Subordinate Legislation Committee noted that Scottish Ministers were not also given such a power to exempt people from the licensing requirements.

15. The Minister was asked whether it was appropriate for the Secretary of State, and not also Scottish Ministers, to have such an overriding power. Mr Ewing said that this approach “mirrors the existing approach to licensing of individuals under section 4 of the 2001 Act. In other words, what is currently provided for individuals will now apply to businesses”.⁷ The aim was to exempt only those who were already covered by a system of regulation at least as stringent as the proposed licensing regime. Mr Ewing said that the only existing exemption was for security staff at airports. The Secretary of State would have to consult Scottish Ministers prior to making any such exemption and Mr Ewing was satisfied that this would ensure that the Scottish Government’s views were taken into account.

Issues raised by GeneWatch UK

16. GeneWatch UK’s written submission referred to provisions in the Bill which authorise the collection and retention of samples, DNA profiles and fingerprints, without consent, from people who have been convicted, cautioned or given a reprimand or final warning for any recordable offence in England, Wales or Northern Ireland. Although these clauses of the Bill do not extend to Scotland, and are therefore not covered by the legislative consent memorandum, GeneWatch was concerned that, by virtue of cross-border police powers under the Criminal Justice and Public Order Act 1994, the Bill would—

“impact on persons currently resident in Scotland and/or convicted of certain offences in Scotland, in a manner which may not be compatible with the European Convention on Human Rights or with the devolution of policing powers”.⁸

17. In oral evidence Mr Ewing said that Home Office officials had given assurances that “there is no intention to take retrospective samples from Scottish residents” and that “the Home Office has offered to ensure that its minister puts that on the record during the passage of the Bill”.

18. In a subsequent written submission, he assured the Committee that “the issues raised by GeneWatch are not relevant for the purposes of the LCM as they relate entirely to reserved law which has no effect in Scotland.”⁹ In particular, he explained that the powers under the 1994 Act only allow for the cross-border enforcement of warrants and court orders, and so would not permit the police to require people in Scotland to attend a police station to have samples taken, or arrest them without warrant for failing to do so. Mr Ewing added that the Bill’s compatibility with the European Convention on Human Rights (ECHR) is a matter for the UK Government but that he considers the provisions covered by the memorandum to be ECHR-compliant.

19. The Committee considered the Minister’s letter at its meeting on 26 January 2010 and was satisfied with the assurances given by Mr Ewing.

Issue raised by Children in Scotland

20. The Children in Scotland submission commented on clause 42 of the Bill, which adds a new section to the Firearms Act 1968 making it “an offence for a person in possession of an air weapon to fail to take reasonable precautions to prevent it coming into the hands of a person under 18”¹⁰. According to Children in Scotland, this would “effectively prohibit air weapon use by people under 18”¹¹ and therefore prevent children who had previously legitimately used air weapons for sporting activities and pest control in rural communities from continuing to do so.

21. Mr Ewing explained that, as the subject-matter of the 1968 Act is reserved, this issue was not relevant to the question of legislative consent under the Sewel Convention. In any case, he assured the Committee that the new offence would not apply where the person under 18 is already permitted by section 23 of the 1968 Act to use an air weapon and “therefore, the provision does not restrict legitimate use by persons under the age of 18.”¹²

Recommendation

22. The Committee notes the Subordinate Legislation Committee’s concern that Scotland is not expressly excluded from the application of new sections 4A(2)(a) and (b) of the 2001 Act, but acknowledges the Scottish Government’s explanation of the approach taken.

23. The Committee is content with the provisions in the Crime and Security Bill which are applicable to Scotland to which the Sewel Convention applies. Accordingly, the Committee recommends that the Parliament agree to a legislative consent motion in the terms outlined in the memorandum.

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