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Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2017

Volume 787: debated on Wednesday 29 November 2017

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2017.

My Lords, the draft order laid before the House is made under Section 104 of the Scotland Act 1998, which allows for necessary or expedient provision in consequence of an Act of the Scottish Parliament. The order is being made to ensure that the policy set out in the Criminal Justice (Scotland) Act 2016 can be fully implemented. It was passed by the Scottish Parliament on 8 December 2015.

The 2016 Act contains a number of provisions which have been developed from the recommendations of Lord Carloway’s review of the Scottish criminal law and practice, which reported in November 2011. This review followed a UK Supreme Court decision in the case of Cadder that gave suspects a right to legal advice before questioning by the police in Scotland. In this context, the review aimed to modernise and enhance the efficiency of the Scottish criminal justice system, and its recommendations have led to a number of the provisions in the 2016 Act.

These include reforms of arrest and custody laws designed to provide flexibility for police in conducting investigations while ensuring fairness for suspects. It will also build on 2010 reforms to allow suspects access to a lawyer whether or not they are to be interviewed by the police. In addition, the Act specifically states that the police have a duty not to deprive people of their liberty unnecessarily. As a consequence of some of the measures introduced by the Act, it is necessary either to amend the law elsewhere in the United Kingdom or to make provision in relation to Scotland where the reforms apply to reserved matters.

Making such amendments is not within the competence of the Scottish Parliament, so it is necessary for this order to be laid before the United Kingdom Parliament. It is made under Section 104 of the Scotland Act 1998, which allows the UK Government to make legislative changes which are necessary or expedient in consequence of an Act of the Scottish Parliament.

The order makes provision about arrests effected both in Scotland and outside Scotland in connection with crimes committed in Scotland and the investigation of Scots law crimes and extradition matters in Scotland. Provisions in Schedule 1 will ensure that cross-border enforcement and assistance continues to work effectively. Where a Scottish warrant is executed in England, Wales or Northern Ireland, provisions in the 2016 Act on arrest procedure and rights of suspects will apply.

Schedule 2 covers the effects of the 2016 Act on “reserved forces”, namely the Ministry of Defence Police, the British Transport Police and the Civil Nuclear Constabulary. Schedule 3 relates to the impact of the 2016 Act on immigration, HMRC officers, designated customs officers and the National Crime Agency. Schedule 4 covers the application of the 2016 Act on persons subject to service law. Schedule 5 makes provision regarding a person arrested in connection with extradition proceedings.

Reserved forces exercising the powers and privileges of a police constable in Scotland will also be bound by a stop-and-search code of practice issued under Section 73 of the 2016 Act. The order amends the 2016 Act to ensure that the UK Government and reserved bodies subject to the terms of the code are fully consulted when any amendments to the code are being considered. The order also refers to a code of practice that will apply to investigative bodies reporting criminal offences in Scotland to the Crown Office and Procurator Fiscal Service.

This is a particularly wide-ranging and complex order that has required close working between the UK and Scottish Governments, Ministers and officials. As such, it shows how Scotland’s two Governments can co-operate effectively to make the devolution settlement work. I beg to move.

My Lords, I again thank the Minister for his very full explanation of the order. As we have heard, it provides legislative changes in consequence of Parts 1 and 2 of the Criminal Justice (Scotland) Act 2016 as passed by the Scottish Parliament. Again, we are content to support the order.

As has been stated, the Act follows, some years later, a review of criminal law and practice in Scotland undertaken by Lord Carloway, and has been subject to detailed scrutiny by Members of the Scottish Parliament. Provisions include changes to police powers, rights of suspects while in police custody, criminal procedure and provisions regarding powers of stop and search. These are wholly within the devolved competence of the Scottish Parliament.

The order is made under Section 104 of the Scotland Act 1998 to make consequential legislative changes regarding arrests effected in Scotland and outside Scotland in connection with crimes committed in Scotland, police custody in Scotland, the investigation of Scottish law crimes and extradition matters in Scotland. I ask the Minister: where these provisions affect officers outside Police Scotland, including police officers across UK forces outside Scotland, immigration and customs officials, NCA officers, the Civil Nuclear Constabulary and other forces covered by the order, has any assessment been made of any additional training or resource needs that might arise from these provisions? If so, who would be responsible for funding any such additional needs identified? I look forward to the Minister’s reply.

My Lords, I also thank the Minister for his introduction and explanation. I will explore one or two aspects of this because, as he said himself, it is complex. It is a mixture of devolved and reserved matters.

I will first look at reserved matters relating to human rights, because we have clearly had some controversies in Scottish policing over the last few years. The Liberal Democrats oppose the creation of a Scottish national police force. We believe our criticisms and concerns have been somewhat borne out, certainly in the early part, by the way the national force conducted itself and the fact it appeared to be under somewhat more direct political control than many of us would regard as appropriate and would be the case for police forces in England.

In particular, we saw a massive increase in the use of stop and search by the police in Scotland. In 2013-14, there were 450,173 “consensual” searches. The meaning of “consent” is rather subjective in that context. There were 192,470 statutory searches. Not surprisingly, this created a great deal of public reaction. The Scottish Government responded to that; I give them credit for that, but they needed to because it was a very strong reaction. Consequently, the figures the following year, at least from 1 April to 30 September, saw consensual searches drop to 888 from 450,000 and the statutory searches from 192,470 to 20,665. Consensual searches are now banned altogether, so that is a step in the right direction. I want to check with the Minister, where part of the reaction was not just that public concern but human rights implications that would fall on the UK Government, does this combination of Acts by the Scottish Parliament and this statutory instrument maybe avoid the possibility of that particular question of human rights being addressed again?

The other area is the issue of cross-border policing generally. The Minister mentioned the MoD police, civil nuclear police and British Transport Police. The Scottish Government have taken over the responsibility of the British Transport Police north of the border. Many of us felt that that was a retrograde step too. I am a passionate home ruler, a passionate believer in devolution and supporter of the Scottish Parliament, but I believe that we should also recognise that, as long as we are part of the United Kingdom—which the people of Scotland want us to be—devolution should be to enhance and bring Government closer, but not to undermine the advantages of collective working across the United Kingdom. It seems to me that there will be circumstances where the transport police could be inhibited in their role in cross-border policing. Can the Minister give some clarification as to whether this instrument will affect that positively, negatively or not at all?

I do not have the capacity to go through the whole SI in detail, but there seem to be a number of issues that are really quite important, including to clarify how the devolved and reserved powers can work constructively together—which is why we are not opposing the instrument—but some clarification is nevertheless necessary of what that really means. There also needs to be an understanding, or perhaps appreciation, that the Scottish Government have learned a little bit about their excessive zeal in creating a national police force, which has led to quite considerable friction. I mention again the appearance of mounted police at highland league football matches and routinely arming police officers in rural villages. Things such as that are well within the devolved capacity of the Scottish Government but bring human rights issues into question, so they are not of some indifference to the United Kingdom Government, who have to answer if there are questions of human rights compromises by a devolved Government or Administration.

Having said that, and supporting the passage of the instrument, I would nevertheless appreciate it if the Minister could answer those questions.

My Lords, I want to raise two points. The first, briefly, is an important one on European arrest warrants and whether there is any implication when—if—we go out of the European Union. Will cross-border activity by police using European arrest warrants be affected?

I have a major objection, however, following up what my noble friend has said. I warn that I am going to cause real trouble on the next instrument. I am sorry that I have not alerted my noble friend and colleague on the Front Bench, but I am not going to support it. I will vote against it. I am not going to agree that it should go forward because of what we have just heard about the British Transport Police—and I feel even more strongly about it. It is a major mistake. We and the Government should recognise now that we have all made a major mistake in agreeing that the responsibility for the British Transport Police should be devolved to Holyrood.

I am in favour of devolution. I campaigned for it and, unlike my noble friend on the Front Bench, I have been a long-standing supporter of devolution. But the way in which it is being dealt with by the Government in relation to the British Transport Police is, quite frankly, dangerous, reckless and ought to be stopped. Ruth Davidson—who I understand is the most important Conservative in the whole United Kingdom—has been attacking this and has said that it should be stopped.

The British Transport Police is working perfectly now, dealing with policing on the railways north and south of the border. It is working very well and it should stay that way. The transport unions want it to stay that way. The chief constable of the British Transport Police wants it to stay that way. Yet the Scottish Government are going to incorporate the British Transport Police in Scotland into Police Scotland. Police Scotland is already a total debacle. The chief constable is on gardening leave. Officers have been suspended. The chairman of the Scottish Police Authority has had to resign. Fortunately, a good new chair is taking over, with effect from tomorrow. Nevertheless, in spite of Susan Deacon taking over, it is wrong for the British Transport Police to be incorporated into Police Scotland. It is wrong in terms of policing. It is wrong in every way.

The Government should think again. They should withdraw this statutory instrument and go back to the Scottish Government and say that they have come up against intractable objects—I do not mind being called an intractable object—and are having a change of mind in relation to devolving the British Transport Police. It is never too late to change your mind—I have done it before: I have made mistakes and admitted them, and changed my mind—if you think something is wrong and it is going to be positively harmful. It will be harmful to policing, north and south of the border. It is not just a Scottish issue because it will affect criminals in Scotland coming down to England and criminals in England coming up to Scotland on the railways, and the British Transport Police will not be able to deal with that.

I know that it is difficult for a junior Minister, particularly a new junior Minister, to go back and say to a Secretary of State—although I know David Mundell well and I know he will understand this—that he has had trouble dealing with this statutory instrument and the Government must think again. I hope that there will be some way to get the Scottish Government to think again. For far too long, we have just accepted that what they say is right because they are the Scottish Government. We have a very distinguished former Presiding Officer of the Scottish Parliament with us here today—no one has done a better job in the chair in the Scottish Parliament than my noble friend Lord Steel—but even he will admit that sometimes the Scottish Parliament, and particularly in this case the Scottish Government, get it wrong and it is now time to think again. If we do not do that, what is the point of coming here? What is the point of looking at these things? What is the point of having a legislature for the whole United Kingdom—which thankfully still has responsibility in Scotland—if we do not sometimes stand up and say, “Enough is enough”? I think we should do so on this issue.

My Lords, my point is much narrower. I would like clarification on Schedule 1. A constable of the Police Service of Scotland can arrest someone in England, Wales or Northern Ireland without a warrant in connection with a Scottish crime in certain circumstances. A constable of a police force in England, Wales or Northern Ireland can arrest a person in Scotland—it does not mention a warrant—in certain circumstances. Is there a difference? One says without a warrant; one does not mention it. What are the implications? What are the circumstances that are mentioned there? Later on it talks about deserters and refers to certain limited circumstances. I can understand that; obviously, that is a much more complicated issue. But it would be extremely useful to have some clarification about what that cross-border responsibility would be.

I was hoping that there would be another question to give me a minute or two longer. In the absence of that additional question, I will try to answer the questions that I can. First, I welcome the support from the noble Lord, Lord McAvoy, and other noble Lords and recognise the dissent from the noble Lord, Lord Foulkes. I will come back to that point.

In answer to the question from the noble Lord, Lord McAvoy, about the training and the costs of training, the reserved forces operating in Scotland have been trained through existing budgets. Police Scotland has assisted in this by carrying out training courses for those reserved bodies operating in Scotland. It has also continued supporting partner agencies to adjust to the Act. So there should be no additional costs. However, the noble Lord is quite right to raise the question. We need to make sure that we keep an eye on this. Offering training once and believing that that is all is not enough. We need to make sure this is ongoing training and that it is delivering. It is important that we make sure that we are auditing the outcome and output of the training.

In response to the noble Lord, Lord Bruce, who has asked some serious questions about human rights, noble Lords will recall that the Cadder case originated from a human rights issue. That was the reason why the Government were very keen to move forward.

On stop and search, noble Lords will be aware that this is an operational matter, which limits my ability to comment specifically. However, I note again that where there are issues such as this, they can and should be addressed directly through organisations in Scotland. I note that the noble Lord, Lord Foulkes, welcomed, Susan Deacon, the new chair of the oversight body. I believe that that appointment will be a useful addition to the overall oversight matter. These issues need to be addressed directly through that point. If violations of human rights occur, they can be raised and escalated through the different strata. In the first instance, it would be a matter for the Scottish Government to address.

I will come back in a moment to the more complicated question on the British Transport Police. However, in answer to the first question from the noble Lord, Lord Foulkes, the European arrest warrant is still a subject for negotiation, so we do not yet have clarity on exactly what that will mean. If noble Lords will forgive me, I will postpone answering that question until I have an answer to it. That is probably the sensible thing to do.

The noble Lord has made a passionate point about the British Transport Police. I think not a single person on these Benches does not share his concern about some of the issues which seem to be unfolding, not for the sake of better policing or for better serving the people, but rather for a narrower, more factional agenda. I think we all have a certain degree of unease about that particular aspect. The important thing for me to note at this point is that the Smith commission recommended by consensus that powers over this would be devolved back to the Scottish Parliament and to the Scottish Government. In this instance, the Scottish Government are operating within their competence to do so. I share some of the noble Lord’s unease and I am sure that this will not be the end of the matter.

On the Smith commission, with no disrespect to the noble Lord, Lord Smith, for whom I have great respect, or to the other members of the commission, it is possible they did not get everything right. They were rushed. They had to do things very quickly and were under a lot of pressure from the SNP in particular. At the end, John Swinney, having signed up and agreed to the Smith commission, said at the press conference that he did not accept the recommendations —an astonishing situation. If they can do that, we have the right to think again as well.

I may be wrong on procedure, but I think that if we do not agree this today, it goes to the House at a later date. That will give the Minister time to think and to consult. In that case, he might be able to consult not only David Mundell and Ruth Davidson but—can I go higher?—even Theresa May about this, because there is genuine concern. I have expressed it strongly, but it is expressed even more strongly by some leading Conservatives as well as other people in my own party. I hope we can have a pause in this statutory instrument. I do not think it would delay it unduly. It would give the Minister time to go back and say, “Look, I as a Minister faced this furore”. Although they have not got to their feet, all the people round the Committee Room were nodding when I was making this point. The Minister has made the point himself and substantially agreed with me. This would give the Minister time to go back and perhaps find a way to get the matter reconsidered.

I will, I hope, be guided on points of procedure regarding the noble Lord’s exact question. However, I know that whatever we agree here today, the order must then move to the Floor of the House, at which point there will, I imagine, be an opportunity for this point to be made in the Chamber and for a Division to be called on the point.

That might be the opportunity for that pause. I appreciate some of the points which the noble Lord is making, but he will need to find support in the House. I am not sure whether I can comment on that at the moment, but I recognise the passion with which he makes the point, which is that issues are now unfolding. I stress that this matter was devolved to the Scottish Parliament and the Scottish Government; I do not believe that we can now revisit it in the fashion which the noble Lord would like, if I am being frank. I hope that that gives some answer to that.

I have one more answer to give to the noble Baroness, Lady Donaghy. She will be pleased to know that I will write to her, because she asked quite a technical question which requires a technical response. If she will allow me, I will write to her in due course with that information, and will happily share that with everyone else in the Room.

Perhaps I can help the Minister. I believe that whatever happens today, provided that my noble friend indicates to the Government Whips that he intends to debate the order on the Floor of the House when it is called, they will seek to make time so that there can be a proper debate.

Helpfully, apparently that is a matter for the usual channels, and I am not one of them, so I hope that that will be resolved in due course and that the noble Lord, Lord Foulkes, will find his satisfaction through that.

I thank the Minister for giving way before he sits down. The Smith commission proposals were supported. There was a lively discussion and the situation of the British Transport Police was brought up, but it has been devolved. I wonder whether, not to alleviate the concerns of my noble friend Lord Foulkes but to address them, it would be procedurally possible for the Minister to undertake to raise this specific debate with his counterparts in the Scottish Parliament’s Government.

That is a very good point indeed. I believe that I will be able to raise this very point both behind the scenes and with my counterparts north of the border, and then it will be discussed more fully in due course.

I am grateful for the assurances of the Minister and, even more, of my noble friends, both of whom are part of the usual channels in one way or another. I feel no less strongly about it, but I understand the procedure that should be followed.

I am very happy for that. Again, I will do all I can to take this forward in the manner in which we have discussed over the past few moments.

Motion agreed.