Legislative Consent Memorandum
Coroners and Justice Bill
Draft Legislative Consent Motion
1. The draft motion which will be lodged by the Cabinet Secretary for Justice is:
"That the Parliament agrees that the relevant provisions of the Coroners and Justice Bill introduced in the House of Commons on 14 January 2009, relating to the EU Services Directive, the power to create information sharing gateways, and criminal memoirs, so far as these matters fall within the legislative competence of the Scottish Parliament, or alter the executive competence of the Scottish Ministers, should be considered by the UK Parliament."
Background
2. This memorandum has been lodged by Kenny MacAskill, Cabinet Secretary for Justice, under Rule 9.B.3.1(a) of the Parliament's standing orders. The Coroners and Justice Bill was introduced in the House of Commons on 14 January 2009. The Bill can be found at:
http://services.parliament.uk/bills/2008-09/coronersandjustice.html
Content of Bill
3. Most of the Bill relates to England and Wales or Northern Ireland. It contains a range of provisions concerning criminal justice matters including reforms to the criminal law as well as changes to the operation of the coroners system.
Issues subject to the consent of the Scottish Parliament and reasons for seeking a Legislative Consent Motion
4. There are three areas of the Bill for which the consent of the Scottish Parliament is sought.
EU Services Directive
5. Directive 2006/123/EC of the European Parliament and of the Council on Services in the Internal Market is due for implementation by 28 December 2009. This Directive seeks to establish a single market for the provision of services within the European Union.
6. In terms of Article 30(2), each EU Member State is under an obligation not to refrain from taking enforcement measures against a service provider established in its territory on the grounds that the service provision leading to the enforcement action took place in another Member State. It may therefore be necessary to amend certain legislation in the UK so that enforcement action provided for in that legislation can be taken in respect of activities of a service provider in another country. This may involve extending existing criminal offences. Where the penalties for such offences exceed those specified in paragraph 1 of Schedule 2 to the European Communities Act 1972 (the "1972 Act"), the necessary extension cannot at present be effected by regulations under section 2(2) of that Act (which will otherwise be the vehicle used to implement the Services Directive). The Coroners and Justice Bill provision deals with this problem by disapplying the relevant limitation in Schedule 2 to the 1972 Act.
7. The Services Directive covers services both in the devolved and reserved spheres and accordingly the Bill provision will to an extent relate to matters within the legislative competence of the Scottish Parliament. The Scottish Government is of the view that it is sensible to allow the necessary provision paving (?) full implementation of the Services Directive by way of subordinate legislation to be enacted within this Bill and for the provision to extend to devolved matters in Scotland.
8. There are no financial implications of these provisions. Due to the nature of the provisions, it has not been necessary to undertake any external consultation. The Scottish Government will however consult on any regulations required for the implementation of the Services Directive.
Power to create information sharing gateways through secondary legislation
9. The Bill seeks to implement one of the recommendations of the Richard Thomas/Mark Walport Data Sharing Review Report (2008):
"8.41 Recommendation 8(a): We recommend that where there is a genuine case for removing or modifying an existing legal barrier to data sharing, a new statutory fast-track procedure should be created. Primary legislation should provide the Secretary of State, in precisely defined circumstances, with a power by Order, subject to the affirmative resolution procedure in both Houses, to remove or modify any legal barrier to data sharing by:
- repealing or amending other primary legislation;
- changing any other rule of law (for example, the application of the common law of confidentiality to defined circumstances); or
- creating a new power to share information where that power is currently absent. "
10. The particular scenario addressed by this clause is where bodies can see a good reason for sharing information but find that they cannot do so because of existing law: e.g. where the UK Government wanted local authorities to share information concerning poorer households with the Digital Switchover companies so that they could target help to those households. There have been a number of instances in Scotland where public bodies have found difficulty in identifying a basis for information sharing, and in some cases parliamentary time has had to be found to allow for primary legislation to create such gateways. Thus the argument for the Thomas/Walport recommendation is as strong here as elsewhere.
11. The Bill proposes to implement this recommendation by amending the Data Protection Act 1998 to provide that Ministers within each of the UK Administrations may enable any person to share information which consists of includes personal data by order laid before the relevant Parliament. The exercise of this power is subject to a number of appropriate provisos: the Minister exercising it must be satisfied that it is necessary to secure a policy objective, that it is proportionate to that policy objective, and that the provision strikes a fair balance between the public interest and the interests of any person affected by it. Consultation must take place with the Information Commissioner before such an order is put forward. There is also a requirement on all Ministers (of all Administrations) to consult with the Secretary of State responsible for data protection.
12. Various tests are required to ensure that these powers are exercised by the correct Minister in respect of different functions and bodies: the power of Scottish Ministers is restricted to the sharing of information between Scottish public bodies exercising devolved functions. Where information is to be shared between Scottish and UK bodies, or where the sharing would relate to reserved functions, the power to create such a gateway would reside with the appropriate UK minister. If an order is proposed by a UK Minister which would authorise information sharing in respect of a Scottish public body or would modify an Act of the Scottish Parliament or an SSI, then that Minister must obtain the consent of Scottish Ministers.
Criminal Memoirs
13. The Coroners and Justice Bill introduces a scheme which enables recovery of profits made by criminals from publicising the stories of their crimes. The scheme:
- applies to all criminals, regardless of the seriousness of their offences (although in practice profit is only likely to be made from publications about serious offences, in particular murder and manslaughter);
- is limited to convicted criminals only;
- is limited to such criminals writing, or contributing to, accounts of their own crimes (and not accounts of prison life or publications that may sell by virtue of their author's notoriety);
- covers all forms of publication (books, films, internet etc);
- has a public interest test; and
- follows existing guidelines and limits for asset recovery in other cases.
14. Although Scotland has separate jurisdiction in this matter the Scottish Government considers it to be extremely important that a common approach is taken across the UK. For any scheme to be effective, the Scottish Government considers that comprehensive UK legislation will be more workable and effective than complex, complementary legislation taken forward in both Parliaments on different timescales. UK-wide provisions would help avoid cross-border issues that might be exploited by those seeking to profit from publishing material about their crimes, for example by seeking to exploit any differences between Scottish laws and the law in other parts of the UK.
15. The Scottish Government considers that a civil recovery scheme offers the greatest flexibility and is consistent with the approach taken in other countries where legislation has been introduced to prevent profit from publications about crime.
16. It is hoped that the change in law will act as a powerful deterrent to criminals seeking to profit from their crimes through publicising their stories. It is anticipated that across the UK, only a few cases each year will emerge where the civil recovery scheme is operated. Within Scotland therefore, it is estimated that only a handful of cases annually will occur. This means that in terms of costs, the impact will be limited. In Scotland respondents can apply to the Scottish Legal Aid Board for civil legal aid funding and there may be some limited legal aid costs. Costs would be incurred by the Civil Recovery Unit within the Crown Office in administering and enforcing a new civil scheme; and the civil courts in hearing cases and applying the law. It is likely that some cases may be settled out of court and would not, therefore, generate significant legal or court costs. It is expected that all costs associated with the change in the law can be met within the existing resources of those areas affected.
17. A joint Scottish Executive/Home Office/Northern Ireland Office consultation paper was published on 9 November 2006 and ended on 9 February 2007. The consultation paper sought views on whether the law should be changed through the introduction of a new civil scheme for the recovery of profits based on the civil recovery provisions in the Proceeds of Crime Act. Respondees to the consultation were generally in favour of this proposal.
Conclusion
18. The view of the Scottish Government is that it is in the interests of good governance and an effective justice system that the provisions of the Coroners and Justice Bill relating to the EU Services Directive, the power to create information sharing gateways, and criminal memoirs, so far as these matters fall within the legislative competence of the Scottish Parliament, or alter the executive competence of the Scottish Ministers, should be considered by the UK Parliament.
Scottish Government
January 2009