The Scottish Government

Legislative Consent Memorandum

Criminal Justice And Immigration 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 Criminal Justice and Immigration Bill, reintroduced in the House of Commons on 7 November 2007, relating to investigation of bribery and corruption by foreign officers, violent offender orders and repatriation of prisoners, so far as these matters fall within the legislative competence of the Scottish Parliament, should be considered by the UK Parliament."

Background

2. This memorandum has been lodged by Kenny MacAskill, Cabinet Secretary for Justice, under Rule 9B.3.1(c) of the Parliament's standing orders. The Criminal Justice and Immigration Bill ("the Bill") was originally introduced in the House of Commons on 26 June and reintroduced in the new session under the carry-over procedures. References in this Memorandum are to the Bill as amended in Public Bill Committee in the House of Commons and ordered to be printed on 3 December.

Content of Bill

3. Most of the Bill relates to England and Wales or Northern Ireland. It includes a wide range of provisions about criminal justice, on the management of offenders, amending the criminal law, combating crime and disorder, and on the mutual recognition of financial penalties.

4. Some provisions in the Bill do extend to Scotland. These include provisions on the establishment and functions of Her Majesty's Commissioner for Offender Management and Prisons; increases to the penalty for offences under section 55 of the Data Protection Act 1998 (unlawfully obtaining etc. personal data); on a new immigration status in certain cases involving criminality; and establishing new arrangements for police misconduct and performance, which extend to Scotland in relation to the Ministry of Defence Police and British Transport Police. None of these measures fall within the competence of the Scottish Parliament.

Issues subject to the consent of the Scottish Parliament and reasons for seeking a legislative consent motion

5. There are three areas of the Bill for which the consent of the Scottish Parliament is sought.

Bribery and corruption by foreign officers etc.

6. The Serious Fraud Office has compulsory powers under section 2 of the Criminal Justice Act 1987 to compel the disclosure of evidence that may be relevant to a current investigation into serious or complex fraud. Clause 90, added in Public Bill Committee introduces a new section 2A into the 1987 Act, which would allow the director of the Serious Fraud Office to approve the use of section 2 powers at the vetting stage in cases where it appears that there may have been a corruption offence involving a foreign official. In practice, the provision will be useful in allowing the Serious Fraud Office to compel British companies involved to provide evidence about possible corruption abroad, as long as the material is in the United Kingdom.

7. The UK Government are committed to tackling the corruption of foreign officials involving British companies. Corruption abroad is particularly hard to investigate. In domestic cases, the Serious Fraud Office often receives information on serious corruption or bribery from the police or from a domestic regulator. Documentary evidence and witnesses are often available in the United Kingdom. The information therefore allows the Serious Fraud Office to go through a vetting process to decide whether the case justifies setting up what will often be a multi-million pound investigation. Once an investigation is set up, the Serious Fraud Office has powers to demand relevant material such as documentary evidence and to interview witnesses under section 2 of the 1987 Act.

8. Unfortunately, in cases of foreign corruption, it is much more difficult to gather information. Witnesses may be thousands of miles away and reluctant to come forward. Corrupt companies rarely co-operate, and the foreign jurisdiction is often unable or unwilling to provide information. The effect is that cases cannot go beyond the vetting stage because the Serious Fraud Office does not have enough information to decide whether a serious or complex fraud justifies the formal investigation to which it would have to be committed.

9. Under section 1 of the Criminal Justice Act 1987, the SFO may investigate any suspected offence which appears to the Director of the SFO on reasonable grounds to involve serious or complex fraud. For these purposes, section 2 then provides special powers of investigation, including the power to require persons to answer questions and produce documents.

10. While the SFO's powers to investigate serious/complex fraud extend only to England, Wales and Northern Ireland, the powers in section 2 to require persons to answer questions, furnish information and produce documents also extend to Scotland. Powers to apply for search warrants are subject to the control of the Scottish courts.

11. It is proposed that the new pre-investigation powers should also extend to Scotland, and further amendments have been lodged for consideration at Report stage of the Bill in the House of Commons to give effect to this. In the Scottish Government's view, that is appropriate. Information held by persons in Scotland, eg banks, may well be relevant to investigations by the SFO. While the case for extension of the powers under 2(2) and (3) to require information/documents is strongest, and these are the ones most likely to be used, the search warrant powers under 2(4) should also be extended as otherwise the subsection (2) and (3) powers lose their strength. The safeguard that search warrants must be granted by the sheriff is retained.

12. The granting of these investigatory powers in Scotland relates to a devolved matter and therefore requires the consent of the Scottish Parliament through a legislative consent motion.

Violent Offender Orders

13. Part 9 of the Bill establishes a new civil order in England and Wales, the Violent Offender Order (VOO). The VOO is a civil preventative order designed to protect the public from the most dangerous violent offenders whom the courts consider still pose a risk of serious violent harm at the end of their sentence. The orders may only be imposed on individuals that have been awarded a custodial sentence of at least 12 months for a specified violent offence (specified offences include manslaughter, attempted murder, soliciting murder, malicious wounding, and wounding with intend to cause Grievous Bodily Harm). At present, once an offender has completed his or her sentence, the public protection authorities are not able to place restrictions on the individual in order to manage their risk. Violent Offender Orders will enable the police to apply to the court for appropriate restrictions to be placed on those individuals. Orders will be applied for at least 2 years and may include prohibitions and conditions considered necessary by the court to manage the risk of the individual. There will also be a requirement to comply with certain notification requirements, similar to those for the "Sex Offenders Register". Violent Offender Orders are largely based on Sexual Offences Prevention Orders which operate under the Sexual Offences Act 2003. The Bill also provides for interim VOOs.

14. It is a criminal offence (punishable by up to five years' imprisonment) for an individual subject to a VOO to fail to comply with any of the prohibitions, restrictions or conditions in the Order, or to fail to comply with the notification requirements. This is provided for in clause 140 of the Bill, which currently only extends to England and Wales. To avoid an individual travelling abroad with the purpose of breaching a condition, clause 136 requires that any individual subject to a VOO or an interim VOO informs the police prior to travelling outside of the United Kingdom. However as the Bill stands it would not be an offence in Scotland or Northern Ireland for an individual to breach a condition of an Order in Scotland or Northern Ireland. The UK Government are keen to close this loophole.

15. The Scottish Government agree that it is worth closing the loophole by providing that it is an offence in Scotland to fail to comply with the conditions of an Order or the notification requirements. With the consent of the Scottish Parliament, a similar approach was adopted in the Serious Crime Act 2007, where it is an offence in Scotland to fail to comply with a Serious Crime Prevention Order even though such orders can only be imposed by the courts in England, Wales and Northern Ireland. Similar amendments are also being made in respect of Northern Ireland.

16. The Scottish Government is not proposing that the provisions on Violent Offender Orders should be extended to Scotland through this Bill. If, in the future, it was considered that Violent Offender Orders should be introduced in Scotland in their entirety, then that would most appropriately be done through an Act of the Scottish Parliament.

Repatriation of Prisoners

17. The Repatriation of Prisoners Act 1984 enables prisoners to serve their sentences in their own country where there is an international agreement in place allowing for such a transfer. The UK is party to 2 multi-party prisoner transfer agreements: the Council of Europe Convention on the Transfer of Sentenced Persons and the Commonwealth Scheme for the Transfer of Convicted Offenders. The UK has also put in place a number of bilateral agreements with other countries, based on the Convention. The precise terms on which a prisoner's sentence is administered following such a transfer are governed by the specific international arrangements in place between the United Kingdom and the country with whom any transfer is taking place.

18. One of the principal requirements of the 1984 Act is that the prisoner should give his consent to the transfer. This requirement is replicated in each of our prisoner transfer agreements. However, since the 1984 Act came into force in 1985, international arrangements have moved on and the principle of transfer without consent has been established. The 1997 Additional Protocol to the Council of Europe Convention on the Transfer of Sentenced Persons now provides for transfer without consent (i) where a prisoner is to be deported at the end of sentence and (ii) where the prisoner has fled. Annex A gives a list of the countries with which the UK has an agreement.

19. The UK Government propose to make amendments to the Repatriation of Prisoners Act 1984 to ensure that full effect is given to the Council of Europe's Additional Protocol. The ratification of the Protocol would be a significant addition to existing transfer arrangements. It is also consistent with the UK position in relation to the EU Framework Decision on the application of the principle of mutual recognition to judgements in criminal matters ('transfer of prisoners'), which has yet to be adopted.

20. From the UK Government's perspective, ratification of the Additional Protocol would bring benefits as it would simplify the removal of foreign national prisoners from the UK to serve their sentences in their home jurisdiction. That is of less relevance to the Scottish Government, given the far lower numbers and proportion of foreign national prisoners, but the UK cannot ratify the Additional Protocol and benefit from its provisions unless the whole of the UK is compliant.

21. In anticipation of ratifying the Additional Protocol, an amendment to the 1984 Act was made by section 44 of the Police and Justice Act 2006 to remove the domestic law requirement that the prisoner's consent to transfer be obtained in all cases. That amendment did not extend to Scotland.

22. The changes made by the Police and Justice Act 2006 concerned only Article 3 of the Additional Protocol, which deals with the removal of the requirement for prisoner consent. The changes required to the 1984 Act in order to give effect to the Additional Protocol arise from Article 2. That provides:

1 Where a national of a Party who is the subject of a sentence imposed in the territory of another Party as a part of a final judgment, seeks to avoid the execution or further execution of the sentence in the sentencing State by fleeing to the territory of the former Party before having served the sentence, the sentencing State may request the other Party to take over the execution of the sentence.

2 At the request of the sentencing State, the administering State may, prior to the arrival of the documents supporting the request, or prior to the decision on that request, arrest the sentenced person, or take any other measure to ensure that the sentenced person remains in its territory, pending a decision on the request. Requests for provisional measures shall include the information mentioned in paragraph 3 of Article 4 of the Convention. The penal position of the sentenced person shall not be aggravated as a result of any period spent in custody by reason of this paragraph.

3 The consent of the sentenced person shall not be required to the transfer of the execution of the sentence.

23. This power enables Ministers to execute another country's sentence without a transfer having occurred. That is because, prior to execution taking place under Article 2, the prisoner will already be in the country which is to execute the sentence. Amendments are required to ensure that the Act covers this sort of situation and that it provides the UK authorities with the further powers that are required in order to put the Additional Protocol into full effect. In practice, the UK and Scottish Governments consider that the provisions of Article 2 will be of little practical effect for any part of the UK, but they nevertheless need to be implemented before the Protocol can be ratified.

24. In theory it would be possible for the Scottish Parliament to legislate separately for this as regards Scotland. However an attempt to draft clauses in such a way that they only apply to England, Wales and Northern Ireland, so that separate matching provision could be made for Scotland, has shown that this would be extremely difficult. The Repatriation of Prisoners Act 1984 applies UK-wide, and was amended in 1999 to divide functions between the Secretary of State and the Scottish Ministers. This was not a simple matter of providing that references in Scotland would be read as references to the Scottish Ministers. Instead a concept of "relevant Minister" had to be established, with the Scottish Ministers being the relevant Minister (including under English law) for transfers to or from Scotland.

25. The Scottish Government agrees with the UK Government that the best way to proceed is to amend the Repatriation of Prisoners Act on a UK basis, with the approval of the Scottish Parliament. The alternative would be a complex provision in a UK Act, an equally complex provision in a Scottish Act, and one or more Orders under the Scotland Act to fill in the gaps. That would further complicate an already difficult piece of legislation, and for no discernible gain.

26. Of rather more practical significance is how to replicate the amendment made in the Police and Justice Act 2006 (described above) which removed the requirement for prisoner consent. That amendment was limited so that it did not apply to Scotland on the basis that the Scottish Parliament could legislate separately for it. While it does not give rise to the same level of technical difficulty as the provisions described above, it would require provision in an Act of the Scottish Parliament and an order under the Scotland Act to implement it. The UK could not ratify the Additional Protocol until this provision is implemented in Scotland.

27. No Scottish Government Bill planned for the near future would provide a suitable vehicle, and introducing a short Bill purely for these provisions would not seem to be a proportionate or effective use of Scottish Parliamentary time or resources. In the circumstances, the Scottish Government considers that it would be best to take the opportunity of the Criminal Justice & Immigration Bill to make this change for Scotland.

28. It should be noted that there is a European Framework Decision relating to prisoner transfer which is nearing completion. The measures proposed here will assist in implementing that Framework Decision, but further consideration will need to be given in due course as to whether any additional measures will be required, and how those should be delivered.

Additional Matters

29. The Scottish Government wishes to draw the attention of the Parliament to some other provisions of the Bill, and amendments which are proposed to them. These relate to the establishment of Her Majesty's Commissioner for Offender Management and Prisons, and are contained in Part 4 of the Bill.

30. The Commissioner has several strands to his remit-

• Investigation of complaints (clauses 35 to 39)
• Investigation of deaths (clauses 40 and 41)
• Investigations requested by the Secretary of State (clauses 42 and 43).

As set out in the Bill, the Commissioner's remit in Scotland is limited to dealing with complaints and requests in relation to immigration detention centres and the activities of immigration custody officers. The deaths investigation remit does not extend to Scotland.

31. The UK and Scottish Governments wish to ensure that the Commissioner has an effective remit in relation to immigration detention premises and immigration custody activity in Scotland. At the same time, we need to ensure that criminal investigation and investigation of deaths by the Lord Advocate has primacy and that investigations by the Commissioner cannot adversely affect these. In some ways the current text of the Bill risks interference with the Lord Advocate's role - in others it gives the Commissioner too narrow a remit.

32. Amendments have therefore been lodged to-

• provide that the Commissioner is required to defer an investigation requested by the Secretary of State if it appears to the Lord Advocate (rather than the Commissioner) that it might adversely affect a criminal investigation, or an investigation of a death, which is being or is to be conducted by the Lord Advocate or the procurator fiscal; and
• extend the Commissioner's deaths remit to include deaths in Scotland, with appropriate safeguards for the Lord Advocate's role.

33. These amendments, while still relating to reserved matter of immigration, would confer functions on the Lord Advocate in relation to her role as head of the systems of criminal prosecution and investigation of deaths, rather than as one of the Scottish Ministers. As such the consent of the Scottish Parliament is not required. Nevertheless we consider that this is a matter that will be of interest to the Parliament, so take this opportunity to draw attention to it.

Conclusion

34. The view of the Scottish Government is that it is in the interests of public protection and good governance that the provisions of the Criminal Justice & Immigration Bill relating to the investigation of bribery and corruption by foreign officers, violent offender orders and repatriation of prisoners, so far as these matters fall within the legislative competence of the Scottish Parliament, should be considered by the UK Parliament.

Criminal Law & Licensing Division

Criminal Justice Directorate

December 2007

ANNEX A

REPATRIATION AGREEMENTS AS AT 1 DECEMBER 2007

The UK currently has Prisoner Transfer Agreements (PTAs) with following 98 Countries and Territories.

Territories to which the Council of EuropeConvention on the Transfer of Sentenced Persons has been extended