Thank you, convener.
I welcome this opportunity to discuss the draft legislative consent motion on the United Kingdom Criminal Justice and Courts Bill. It deals with two amendments by the UK Government that relate to Scotland.
The first amends the Rehabilitation of Offenders Act 1974 to enable Scottish ministers to set out exclusions, modifications and exceptions to the general rules in that act that relate to alternatives to prosecution in reserved areas in the same way that they relate to conviction.
That amendment, which was considered and agreed to at committee stage in the House of Lords on 14 July 2014, is intended to resolve a legislative competence issue that came to light in the course of the implementation of the Children’s Hearings (Scotland) Act 2011. The Scottish Government encountered a difficulty with part of the package of reforms relating to the treatment of children for the purposes of the rehabilitation of offenders and disclosure, and our objective is to ensure that in certain circumstances people who apply for jobs that involve children or vulnerable groups must disclose specific offences that they committed as children, even if they are spent. Such offences, which will be specified separately in an order to be made under the Police Act 1997, consist of those of a serious sexual and serious violent nature.
During the stage 2 debate on the Children’s Hearings (Scotland) Bill, the then Minister for Children and Young People indicated that the offences to be included in the order under the 1997 act would comprise only those of a serious violent and serious sexual nature. However, to achieve that, the Scottish Government needs to exercise powers in schedule 3 to the 1974 act to set out exclusions, modifications and exceptions to the general rules relating to spent alternatives to prosecutions that are given by children’s hearings. Those powers can be found in paragraph 6 of schedule 3 and section 7(4) as applied by paragraph 8 of schedule 3 to the 1974 act and have the same effect in relation to alternatives to prosecution that the powers in sections 4(4) and 7(4) of the 1974 act have in relation to convictions. Scottish ministers already have the power to legislate in respect of exceptions and exclusions relating to spent convictions in reserved areas because the Secretary of State for Justice’s executive functions in sections 4(4) and 7(4) of the 1974 act in relation to convictions were transferred to the Scottish ministers in 2003 by an order made under section 63 of the Scotland Act 1998.
The difficulty to which I have referred relates to the Scottish ministers’ lack of competence to make an order under schedule 3 to the 1974 act setting out exclusions and exceptions to the general rule that spent alternatives to prosecution from children’s hearings do not need to be disclosed. The order that we have in mind would specify the types of employment that are excluded from the 1974 act and where disclosure of spent alternatives to prosecution is required. Some types of employment, such as registered pharmacist, doctor, nurse, midwife and firearms dealer, fall within reserved areas, and the legislative competence issue stems from the insertion of schedule 3 to the 1974 act by an act of the Scottish Parliament—the Criminal Justice and Licensing (Scotland) Act 2010. That means that the enabling powers in schedule 3 are subject to the limitations of devolved competence with regard to the Scotland Act 1998 and cannot be used to make provision on reserved matters.
In this case, the relevant provisions are sections 29(2)(b) and (c) of and schedule 4 to the Scotland Act 1998. Section 29(2)(b) provides that a provision is outside the legislative competence of the Scottish Parliament if it relates to reserved matters, and section 29(2)(c) provides that a provision is outside the legislative competence of the Scottish Parliament if it is in breach of the restrictions in schedule 4, which imposes various restrictions preventing the Scottish Parliament from modifying various enactments or rules of law such as the law on reserved matters.
The solution is for the Criminal Justice and Courts Bill to insert a new paragraph into schedule 3 to the 1974 act to make it clear that Scottish ministers can exercise the powers in paragraph 6 and section 7(4) as applied by paragraph 8 of schedule 3 in relation to reserved matters without being restricted by section 29 of the Scotland Act 1998. A transfer of functions similar to that carried out in 2003 for convictions cannot be done in this instance because the relevant powers were conferred on Scottish ministers by an act of the Scottish Parliament instead of on a minister of the Crown by a Westminster enactment. Primary legislation at Westminster is the most direct and comprehensive mechanism for conferring full executive competence on Scottish ministers and will, in respect of alternatives to prosecution, ensure parity with their powers in relation to convictions.
The second amendment from the UK Government that extends to Scotland relates to the offence of police corruption. In recent years, a number of high-profile incidents relating to the conduct of the police south of the border has badly damaged the reputation of some English and Welsh forces; the Metropolitan Police, in particular, has been under immense scrutiny following the Stephen Lawrence inquiry—and the subsequent Ellison review—and plebgate. In her oral statement to the Westminster Parliament on 6 March 2014, the Home Secretary announced her intention to introduce a new offence of police corruption, which will supplement the existing offence of misconduct in public office and focus clearly on those who hold police powers. The offence will apply to police officers in the 42 forces in England and Wales, the British Transport Police, the Civil Nuclear Constabulary, the Ministry of Defence police and National Crime Agency officers who have been designated by the director general as having the powers and privileges of a constable.
I make it clear that this new police corruption offence will not apply to Police Scotland officers, who are already covered by a statutory offence under section 22 of the Police and Fire Reform (Scotland) Act 2012 regarding neglect or violation of duty by a constable of the Police Service of Scotland. However, the UK Government now wishes the new offence to be extended to officers of the reserved forces wherever they operate in the UK. The majority of the functions of the BTP, CNC and MDP are connected either directly or indirectly with the reserved matters on which each of them was established, and on that basis Westminster can determine that officers in those forces who are in Scotland are covered by the new offence and that there is no role for this Parliament in that respect.
However, National Crime Agency officers are engaged in activities in Scotland that are substantially devolved. For example, one of the principal roles of NCA officers based in Scotland is to complement wherever possible the investigations of Police Scotland and other Scottish law enforcement partners where the span of criminality extends into England and Wales and on to European and international jurisdictions. A legislative consent motion is therefore needed if there is to be consistency with other reserved forces and within the NCA.
I ask the committee to support the legislative consent motion.