Legislative Consent Memorandum
Policing and Crime 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 in the Policing and Crime Bill, introduced to the House of Commons on 18 December 2008, relating to football banning orders, extradition and the proceeds of crime, 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 Policing and Crime Bill ("the Bill") was introduced in the House of Commons on 18 December 2008. The Bill can be found at:
http://services.parliament.uk/bills/2008-09/policingandcrime.html
Summary of the Bill and its policy objectives
3. The Policing and Crime Bill is sponsored by the Home Office. The Bill is wide ranging in nature and contains provisions relating to:
- Police;
- Prostitution;
- Sex offenders;
- Sex establishments and certain other premises;
- Reducing and dealing with the abuse of alcohol;
- Proceeds of crime;
- Extradition;
- Amending the Aviation Security Act 1982;
- Criminal records;
- Amending the Safeguarding Vulnerable Groups Act 2006;
- Conferring, extending or facilitate search, forfeiture and other powers relating to the United Kingdom's borders or elsewhere; and
- Combating crime and disorder.
Provisions within the Bill for which consent is sought
4. There are three areas of the Bill's provisions for which the consent of the Scottish Parliament are sought. Details are set out below.
Football Banning Orders (FBOs)
5. Breach in Scotland of an FBO issued in England and Wales - In consequence of the extension of FBOs issued in England and Wales (E&W FBOs) to prohibit attendance at Scottish matches, and to make E&W FBOs enforceable by police in Scotland, offences are created in Scots law of breaching E&W FBOs in Scotland. As these offences fall in a devolved subject area, the consent of the Scottish Parliament to legislation on this point is required.
6. The offences mirror the existing offences in Scotland of breaching a Scottish FBO or any requirements imposed by the police, and provide for equivalent penalties on conviction.
7. Initial reporting requirements - The 1989 and 2006 Acts both require an individual to report to a police station specified by the court within five days of the imposition on him of an FBO. At present, the specified police station must be in the jurisdiction where the FBO is imposed. This can create practical problems where the subject does not reside in that jurisdiction. In order to alleviate this situation, the Bill amends the 2006 and 1989 Acts to enable courts to specify a police station anywhere in the UK for initial reporting purposes. Amending the 2006 Act in this way would be within the devolved competence of the Scottish Parliament and therefore a LCM is required in this regard.
8. Reporting requirements for foreign matches - Under the 2006 Act, requirements to report to a police station, and to surrender a passport, may be imposed on the subject of an FBO by police where this is considered necessary or expedient in order to reduce the likelihood of violence or disorder at or in connection with a match being played outside the UK. However, these requirements are suspended for any period during which the subject is resident outside Scotland. The Bill removes this restriction to enable reporting and passport surrender requirements imposed on an individual subject to a Scottish FBO to apply regardless of where in the UK they are resident. This amendment falls within devolved competence and therefore is subject to the LCM. Parallel amendments are made to the 1989 Act.
9. Commencement - The Bill provides for the commencement of the Act by the Secretary of State by statutory instrument. However, such an instrument commencing those provisions described above which fall within the legislative competence of the Scottish Parliament may not be made without the consent of the Scottish Ministers. This falls within devolved competence and therefore is subject to the LCM.
Extradition
10. Return of extraditees convicted in the UK to home country to serve sentence- Article 5(3) of the European Arrest Warrant Framework Decision provides that where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State. Although the UK does not make extradition of British nationals or residents subject to such a condition, section 144 of the Extradition Act 2003 (which deals with outgoing requests) provides a statutory basis on which the UK can comply with a request from other Member States to make surrender of their nationals conditional in this way. There are a number of difficulties with the current wording of section 144 and the Bill makes a number of clarifying amendments. In granting Scottish Ministers a new power to give an undertaking on issues such as the person's treatment in the UK and arrangements to return the person to the EU member state, the Bill alters the executive competence of the Scottish Ministers. An LCM is therefore required.
11. Temporary surrender - One consequence of the increasingly trans-national nature of modern crime is that cases may arise in which an individual whose extradition is requested by one country is serving a sentence or facing criminal proceedings in the country to which the request for extradition is made. In order to ensure that the need to punish an individual in one territory does not frustrate the interests of justice in another, many international extradition agreements now provide a framework which enables a person to be extradited on a temporary basis prior to the completion of their sentence ('temporary surrender'). The Bill makes a number of amendments to improve temporary surrender. In granting Scottish Ministers a new power to provide an undertaking that a subject of an extradition request from a Sheriff will be returned to the extraditing state at the conclusion of the UK criminal proceedings, the Bill alters the executive competence of the Scottish Ministers. An LCM is therefore required.
Proceeds of Crime
12. The Bill contains provisions to amend the Proceeds of Crime Act 2002, most of which are reserved to the UK Government. It provides search and seizure powers for the police and customs officers to prevent the dissipation of personal property. The property may be seized in anticipation of a confiscation order being made. These new powers will be subject to judicial oversight as the search powers should only be exercised where prior judicial authority has been obtained, or if that is not practicable, with the approval of a senior officer at Inspector level. If judicial approval is not obtained and no property is seized or not detained for more than 48 hours, the investigator must submit a report to an independent person (Appointed Person) which sets out why the investigator considered that he had the power to carry out the search and why it was not practicable to obtain prior approval. This is along similar lines to the procedures currently set out for cash seizures. This is reserved to the UK Government.
13. The Appointed Person will be under an obligation to submit an annual report to Scottish Ministers with his conclusions about the matters reported to him and to make any appropriate recommendations. Scottish Ministers will be required to lay this Report before Parliament and publish it. This alters the executive competence of the Scottish Ministers and an LCM is therefore required.
Reasons for seeking a legislative consent motion
14. UK Parliament legislation is required in any event for the reserved provisions of the Bill. It would be possible to bring forward legislation in the Scottish Parliament for the provisions which fall within devolved competence. However, introducing a short Bill purely for these minor and consequential provisions would not seem to be a proportionate or effective use of Scottish Parliamentary time or resources. In addition, making provision in separate Bills in the two Parliaments would run the risk of the legislation not fully matching up if amendments were made, and delay in passing one or other Bill could leave an undesirable gap. In these circumstances, the Scottish Government considers that agreement by the Scottish Parliament to legislation by the UK Parliament on these matters presents the best option.
Financial implications
Football Banning Order
15. While there may be an increase in court business arising from prosecutions for the new football banning order offences, we do not anticipate any significant financial implications from the provisions of this Bill. As the provisions of the Bill are intended to make it easier for police to address the risk of violence and disorder at football matches presented by recognised individuals, this could lead to greater efficiency in operational terms.
Extradition
16. As the provisions are designed to improve the processes in extradition cases, we do not anticipate any significant financial implications from the provisions of this Bill. Although it is possible that there might be a very small increase in court business as a result of extradition becoming more feasible in certain circumstances, the proposals are likely to be used very rarely.
Proceeds of Crime
17. There may be some additional costs to allow the Appointed Person to prepare his report and the publication of it. However, the Appointed Person already prepares a Report to the Scottish Parliament on the cash seizure provisions in the Proceeds of Crime Act 2002 and the additional costs of this new requirement are expected to be marginal and can easily be met from current resources.
Conclusion
18. The view of the Scottish Government is that it is in the interests of public protection and good governance that the provisions of the Policing and Crime Bill relating to football banning orders, extradition and proceeds of crime, so far as these matters fall within the legislative competence of the Scottish Parliament, should be considered by the UK Parliament.
SCOTTISH GOVERNMENT
January 2009