Criminal Justice Committee [Draft]

Meeting date: Wednesday, May 15, 2024

Official Report 848KB pdf

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Criminal Justice Bill

A very good morning, and welcome to the 18th meeting in 2024 of the Criminal Justice Committee. We have apologies from John Swinney. I welcome Jackie Dunbar to the meeting.

Our first item of business is an oral evidence-taking session on two legislative consent memoranda—LCM-S6-43 and LCM-S6-43a—that have been lodged by the Scottish Government in relation to the United Kingdom Criminal Justice Bill.

I welcome to the meeting the Cabinet Secretary for Justice and Home Affairs, Angela Constance, and Scottish Government officials. Ms Alison Morris is head of serious organised crime policy—divert and deter; Kristy Adams is a policy officer in the organised crime unit; and Ruth Swanson is a solicitor in the equalities and criminal justice division.

I refer members to paper 1. I intend to allow up to 20 minutes for this evidence session.

I invite the cabinet secretary to make some opening remarks on the legislative consent memoranda.

Thank you, convener, and good morning.

The draft International Organisations (Immunities and Privileges) (Scotland) Amendment Order 2024 is an order in council made by His Majesty under powers in the International Organisations Act 1968. The nature of the reserved-devolved divide means that, where privileges and immunities relate to devolved matters in Scotland, the function of advising His Majesty in relation to the order is devolved. The purpose of the instrument is to give effect to the obligations relating to immunities and privileges for those matters that are within the legislative competence of the Scottish Parliament for two international organisations: the European Space Agency and—[Interruption.]

Forgive me, convener. Is there a problem?

Forgive me, cabinet secretary, but may I put you on hold for a second? There is a slight procedural query that I am going to clarify.

I think that we have slightly jumped ahead. We will let you get to the correct part.

Just one moment.

I confirm that we are looking at the LCMs.

Right. My apologies, convener.

Not at all. These things happen. Back to you, cabinet secretary.

I very much welcome the opportunity to discuss the two legislative consent memoranda that have been lodged so far to give effect in Scotland to parts of the UK Government’s Criminal Justice Bill, which is a large and complex bill that covers numerous different policy areas.

Although we support the overall purpose of the bill to keep communities safe, we have not accepted every measure offered. In some cases, we already have our own legislation in place; in other cases, we simply do not see the need to legislate in our very different legislative and delivery landscape. However, where we could see benefit to Scotland, we have brought forward an LCM and a supplementary LCM, and we have plans to bring forward a supplementary LCM in the next few days and a further supplementary LCM when the UK Government tables additional amendments at the House of Lords report stage.

The Scottish Government proposes legislative consent to clauses 1 to 4, 16 and 28 of the bill, in so far as it makes provision within the legislative competence of the Scottish Parliament.

The first LCM that we have lodged relates to the provisions covering the criminal liability of bodies corporate and the provisions around access to driver licence records. The identification doctrine is a long-standing element of criminal law that allows for corporate liability in situations where a person representing the directing mind and will of an organisation has committed an offence.

Last year, the Scottish Government and Scottish Parliament supported the codification of the doctrine for economic crimes under the Economic Crime and Corporate Transparency Act 2023 extending to Scotland. The limitation to economic crimes in the 2023 act related to the scope of the relevant legislation.

Clause 16 of the Criminal Justice Bill, as amended, does not make any changes to the substance of the codification. Rather, it extends it to all crimes rather than economic crimes only. Clause 27 clarifies which organisations—including Police Scotland—can access the driver data, and it enables the making of regulations to provide access to driver information held by the Driver and Vehicle Licensing Agency for all policing or law enforcement purposes.

The first supplementary LCM covers the provisions in clauses 1 to 4 of the bill relating to articles used in organised crime and electronic devices for use in vehicle theft. Law enforcement agencies throughout the UK have raised concerns that there are limited legal options to address the rapidly evolving tools and technology exploited by serious criminals. They report that they are increasingly encountering individuals in possession of articles where there is a strong suspicion that they are being used for the purposes of serious crime.

The measures in the UK Government bill therefore seek to prohibit the possession of certain specific articles used in serious crime through the introduction of new criminal offences. Currently, the list of articles comprises vehicle concealments, templates for the three-dimensional—3D—printing of firearms and pill presses. I am particularly pleased to see the measure to control access to pill presses. The Scottish Government and many key stakeholders, including Police Scotland, have been calling for such measures for some time.

The Scottish Government recognises that, for the measures in the relevant clauses to be successful, they should be introduced consistently across the United Kingdom. Therefore, we support their introduction. The proposed list of articles will be amendable via secondary legislation to ensure that it keeps pace with the evolving threat. The bill therefore contains a statutory duty for the secretary of state to consult Scottish ministers before amending the list of articles, regardless of the reserved or devolved status of the article in question.

While I am here, let me tell you about the further supplementary LCM that will come forward very shortly. We had hoped that the relevant amendment would have been tabled in the House of Commons in sufficient time for us to lodge a second supplementary LCM in advance of this committee meeting. The amendment was finally tabled on 9 May, and we hope that a further supplementary LCM will be lodged in the next week. That further LCM is simply a minor technical amendment to add the new organised crime offences in the supplementary LCM mentioned above to the schedule for the proceeds of organised crime as being indicative of a criminal lifestyle. I am sure that the committee would wish to support that approach.

I am happy to take any questions.

Thank you, cabinet secretary.

I think that Katy Clark would like to ask a question. No? That is fine. Do any other members have any questions?

Yes, I do—thank you, convener.

The LCMs relate to the UK Criminal Justice Bill. There is reference in the submission from the Scottish Government to a House of Commons debate on 11 January this year, and it says that the Scottish Government rejected clauses 11 and 12 of the UK bill, which relate to causing people to commit online self-harm. There have been tragic cases of young people harming themselves and even taking their own lives, having been coerced and manipulated by others to do so.

I see from Hansard that the application of the offence in Scotland was rejected by the Scottish Government. Given the importance of a consistent UK-wide approach to some of the other measures that have been adopted, as the Scottish Government’s submission notes, can you explain the thinking behind that particular decision?

Of course: I am more than happy to do so, Mr Findlay. That matter was considered very carefully by the Minister for Social Care, Mental Wellbeing and Sport, Ms Todd. You will appreciate the wide-ranging nature of the UK Government’s Criminal Justice Bill. While many matters in the bill are considered by me, other specific matters covered by the bill are considered by other colleagues.

The matter was given very serious consideration by health colleagues. They will keep the particular issue under review, but they had considerable engagement on the matter with stakeholders, particularly those involved in implementing suicide prevention strategies. There were concerns about unintended consequences, such as potentially criminalising people who were merely trying to give support to people in distress. It is a complex and sensitive area, but I am advised that health ministers will keep the matter under review. They have concerns right now, but they will continue to consider the matter and see how issues evolve.

The only Scottish MP on the relevant committee did not say anything during the debate, as far as I can see from Hansard. The UK minister said that the Scottish Government was instead

“sticking with section 184 of the Online Safety Act for now.”—[Official Report, House of Commons, 11 January 2024; Vol 743, c 163.]

Is it the case, then, that the protections in that legislation will be relied on instead?

Yes: there is existing legislation that we would consider to be adequate.

There are no other questions from members. Is the committee content to recommend to the Parliament that consent should be given for the relevant provisions covered by LCM-S6-43 and LCM-S6-43a?

Members indicated agreement.

As the cabinet secretary noted, we are aware that there will be further LCMs, which the committee will consider.

Are members content to delegate responsibility to me and the clerks to approve a short factual report to the Parliament on the LCMs?

Members indicated agreement.

We will now have a brief suspension to allow for a changeover of Government witnesses.

09:42 Meeting suspended.  

09:44 On resuming—