 Good morning, and I welcome everyone to the Justice Committee's 24th meeting in 2014. Can I ask everyone to switch off mobile phones and other electronic devices as interfere with broadcasting even when they're switched to silent? Apologies from John Finnie. Item 1, the committee is invited to consider items 8, 9 and 10 in private. Item 8 is on our approach to consideration of the Assisted Suicide Scotland Bill. Item 9 is our approach to budget scrutiny. Item 10 is consideration of evidence heard on the Criminal Justice and Courts Bill LCM. Are members agreed to take these in private? Item 2, our next item, the business and evidence session from the cabinet secretary of justice on the Criminal Justice and Courts Bill legislative consent memorandum. The purpose of this session is to inform our report in the LCM, which we'll consider at our next meeting. I welcome the meeting in Kenny MacAskill, cabinet secretary for justice and Scottish government officials. Tansy Main, head of police workforce sponsorship team. I didn't know there was such a thing, but I'm intrigued to know what it is. John MacKatchen, policy officer, youth justice and children's hearing unit. Elizabeth Blair, senior principal legal officer, directorate of legal services. I invite the cabinet secretary to make some opening remarks. Thank you, convener. I welcome the opportunity to discuss the draft legislative consent motion in the UK Criminal Justice and Courts Bill. That deals with two amendments by the UK Government, which relate to Scotland. The first amends the rehabilitations of offenders act 1974, to enable the Scottish ministers to set out exclusions, modifications and exceptions to the general rules in the 74 act relating to alternatives to prosecution in reserved areas in the same way they currently do in relation to convictions. The amendment was considered and agreed at committee stage in the House of Lords on 14 July 2014. The amendment is intended to resolve a legislative competence issue, which came to light in the course of the implementation of the Children's Hearing Scotland Act 2011. The Scottish Government encountered a difficulty with part of the package of reforms around treatment of children for the purposes of rehabilitation of offenders and disclosure. Our objective is to ensure that, in certain circumstances, people applying for jobs that involve children or vulnerable groups must disclose specific offences that they committed as children even if they are spent. Those offences will be specified separately in an order to be made under the Police Act 1997 and will consist of those offences that are of a serious sexual and serious violent nature. The then minister for children and young people indicated during the stage 2 debate of what was the Children's Hearing Scotland Bill that the offences to be included in the Police Act order would comprise only serious violent and serious sexual offences. To achieve this, the Scottish Government needs to exercise powers on schedule 3 to the 74 Act to set out exclusions, modifications and exceptions to the general rules relating to spent alternatives to prosecutions that are given by children's hearings. Those powers can be found in paragraph 6 of schedule 3 in section 7 subsection 4, as applied by paragraph 8 of schedule 3 to the 74 Act and have the same effect in relation to alternatives to prosecution as the powers in sections 4, 4 and 7, 4 of the 74 Act have in relation to convictions. The Scottish ministers already have the power to legislate in respect of exceptions and exclusions relating to spent convictions in reserved areas. This is because the Secretary of State for Justice's executive functions in sections 4, 4 and 7, 4 of the 74 Act in relation to convictions were transferred to the Scottish ministers in 2003 by an order made under section 63 of the Scotland Act 1998. The difficulty that I have referred to relates to the Scottish ministers' lack of competence to make an order under schedule 3 to the 74 Act setting out exclusions and exceptions to the general rule that is spent alternatives to prosecutions, such as ATPs, from children's hearings do not need to be disclosed. The order that we have in mind would specify the types of employment that are excluded from the 74 Act and therefore where disclosure of spent alternatives to prosecution is required. Some of the types of employment such as registered pharmacist, doctor, nurse, midwife, fire arms dealer fall within reserved areas. The legislative competence issue stems from schedule 3 to the 74 Act having been inserted by an Act of the Scottish Parliament, the Criminal Justice and Licensing Scotland Act 2010. This means that the enabling powers in schedule 3 are subject to the limitations of devolve competence in terms of the Scotland Act 1998 and cannot be used to make provision relating to reserved matters. In this particular case, the relevant provisions are sections 29, 2b and C of and schedule 4 to the Scotland Act. Section 9, 22b of the Scotland Act provides that a provision is outside the legislative competence of the Scottish Parliament if it relates to reserved matters. Section 29, 2c of the Scotland Act provides that a provision is outside the legislative competence of the Scottish Parliament if it is in breach of the restrictions in schedule 4. Schedule 4 imposes various restrictions preventing the Scottish Parliament from modifying various enactments or rules of law such as law on reserved matters. The solution to this issue is for the Criminal Justice and Courts Act to insert a new paragraph into schedule 3 to the 74 Act, which states that Scottish ministers can exercise the powers in paragraph 6 and section 74 as applied by paragraph 8 in relation to reserved matters without being restricted by section 29 of the Scotland Act. A transfer of functions, as was done in 2003 for convictions, cannot be done here because the relevant powers were conferred upon the Scottish ministers by an act of the Scottish Parliament rather than on a minister of the Crown by a Westminster enactment. Primary legislation at Westminster is the most direct and comprehensive mechanism for conferring full executive competence on Scottish ministers and will ensure parity with the powers that they have in relation to convictions, because we are talking about alternatives to prosecution. Turning to the second amendment by the UK Government, which extends to Scotland, this relates to the offence of police corruption. There have been a number of high-profile incidents relating to the conduct to the police south of the border in recent years, which has badly damaged the reputation of some English and Welsh forces. The Metropolitan Police in particular has been under immense scrutiny following the Stephen Lawrence inquiry and the subsequent Ellison review in Plebgate. As such, the Home Secretary has announced in a rural statement to the Westminster Parliament on 6 March 2014 her intention to introduce a new offence of police corruption, supplementing the existing offence of misconduct in public office and focus clearly on those who hold police powers. The offence will apply to police officers of the 42 forces in England and Wales, the British Transport Police, the Civil Nuclear Constabulary, the Ministry of Defence Police and national crime agency officers designated by the director general as having the powers, privileges of accounts of a constable. To be clear, this new police corruption offence will not apply to officers of Police Scotland. They are already covered by a statutory offence under section 22 of the Police and Fire Reform Scotland Act 2012 regarding neglect or violation of duty by a constable of the Police Service of Scotland. However, the UK Government now wishes this new offence to be extended to officers of the reserved forces wherever they are operating in the UK. The majority of the functions of the BTP, CNC and MDP are connected either directly or indirectly with the reserved matters for which each force was established. On that basis, Westminster can determine that officers of these forces in Scotland are covered by this offence and there is no role for this Parliament. However, national crime agency officers are engaged in activities in Scotland which are substantially devolved. For example, one of the principal roles of the NCA officers based in Scotland is to complement wherever possible the investigations of Police Scotland and other Scottish law enforcement partners who are the span of criminality extends into England and Wales and on to the European and international jurisdictions. Hence, there is a requirement for a legislative consent motion if there is to be consistency with the other reserved forces and within the NCA and therefore ask the committee to support the legislative consent motion. If we move from the process of those reserved areas when you require that, what changes are actually made to the Rehabilitation of Offenders Act? Are other professions being added to the list in terms of where it must be disclosed, notwithstanding timescales? To deal with the alternatives to prosecution, which is an absolute gap, there are two types of alternative to prosecution. One is the fixed penalty given by a police officer. Others can be what is given out by the crown in terms of other aspects. It is looking to address that particular area to ensure that, where we wish to ensure that we have the ability to have it disclosed, we can ensure that those professions that are reserved are able to address those alternatives to prosecution that we wish to ensure are preserved where it is serious violent and serious sexual offences. For example, if it is a school teacher or somebody and it was an alternative to prosecution, that would continue to have to be disclosed in any application. I will defer to your wisdom, but I think that you would probably be looking, probably an algae might be a fiscal order given to somebody such as a pharmacist or whatever that would be classified as an alternative to prosecution but is within a reserved profession. However, you would wish to ensure that whatever order had been given would not be spent for disclosure Scotland when they were applying to do or whatever other... It would be spent, yes. I will take questions now. I have got Alison and I have got Margaret. Are these technical questions about the various sections of various acts? Are you going to surprise me there, Alison? No, we did not be extremely rare for an alternative to prosecution to be handed down for a serious sexual or seriously violent crime. They are rare, but as we move towards a world in which we are looking for greater use by direct measures, we can see scenarios where fiscal fines, fiscal work orders, et cetera may have been given. Remember what we are dealing with here as well can be with regard to a child where you would not necessarily be looking at a scenario where they were going to get a very serious sentence. The whole basis, and I do recall the debate some five years ago, but some of those things can integrate a propensity. Although the tariff imposed would not necessarily, by its nature, for an adult flag up, indicate that there are underlying issues that may be the sort of information that should be available if you are operating in an ambit where we are looking for care and protection. That was the assurance given by my predecessors when we were debating this. You are right that serious and sexual offences are rare, but we are specifically excluded with regard to children to ensure that, as I say, the ability to flag that up at a later date on the basis that some of those offences do trigger the potential, if not certainly not the probability. That is why that information should be there. Given that it is a child, you might very well find that it will be dealt with in a manner that would be different from an adult, but it is important that we should have that information. I understand that, under the new corruption introduced in the UK bill, it carries the sentence of up to 14 years maximum, yet under Police Scotland, the 2012 act in the Glector violation is only a maximum sentence of two years, if you have any comments on that? We also have common law offences. If a police officer was involved in corruption, he would have been corrupted by others. I think that we have seen charges carried out. There are other offences available to the Crown. I think that the basis of the legislation that we have is that that should be their neglect of duty, where they have not carried out the appropriate action in the upheld office of Constable. If they are unveiled in more criminal activities, then they will be dealt with by other charges that would relate to whether it is fraud and mezzolint or whatever other charges. Indeed, the Crown and the Government are considering whether there is any requirement for public corruption. As I said, we already have a separate common law system. What we have within the police regulations and the police act is simply to ensure that the good offices are upheld. Once you get involved in criminality, you will find that the Crown will prefer to charge a separate offence. You do not have any practical concerns that the national crime agency police officers operating in Scotland and police Scotland would effectively be operating under different legislative frameworks in respect to corruption and neglect or violation of duty. I do not have any qualms about that. I think that the Crown are perfectly satisfied by what we are proposing. The police are satisfied with what we are proposing. Those who hold the office of Constable are held to account by the service that they are dealt with in terms of charges. If they neglect or fail to uphold the office, in the very few occasions where we get officers who go beyond that into active criminality, we have a sufficient statutory and common law basis to deal with it. The number of NCA officers who operate here are few. It is appropriate that they should be the extension of the powers that the Home Secretary wishes, but I think that we deal with the police service in Scotland differently. In the Crown, we would address them through different legislation. Morning, cabinet secretary. What timescale is the Scottish Government working to, in terms of making an order under the rehabilitation of offenders at 1974, to deal with this loophole? We are currently waiting. We have obviously been out to consultation. We are looking to address matters. There has obviously been a Supreme Court decision down south, and we are considering the effect. I am not able to give you a precise timetable. It is suffice to say that we are seeking to act on it as expeditiously as possible, not simply with regard to the issue that has been raised, but with regard to alternatives to prosecution that was flagged up by the Supreme Court. I think that more of Greater Significance south of the border, I think perhaps in here where we have taken a different view, but we do recognise that we are perhaps behind the curve in what we have got to do in terms of rehabilitation of offenders. It is work in progress. We are seeking to deal with it as expeditiously as possible and to deal with it across the board. Amendment is a technical measure, so it was not subject to public consultation, but relevant stakeholders were informed. I just wondered if you could comment on who the stakeholders were and if any expressed any view or concern that we ought to be aware of. We had informal discussions with various child protection groups and there were no issues raised at all because it was basically a technical issue and it was just to try and put alternatives to prosecution from children's hearings on the same basis as spent convictions. It was really just to address a technical issue. On the terms of the police corruption unit, were there any views that were expressed by Police Scotland or Police Federation or anybody like that in terms of those? We consulted with the county corruption unit within Police Scotland in their content with the proposals and we have also consulted with the Scottish Police Federation and Association of Superintendents in Scotland and they too are content because their offence does not affect their officers and their members. That's us. Thank you very much. I thank you. That's just an evidence session. We're not going beyond that. I thank the officials for your attendance. I suspend for a minute to allow the changeover of officials. The cabinet secretary is staying for the next item. It's consideration of one affirmative instrument, the draft legal professional legal aid Scotland act 2007, membership of the Scottish legal complaints commission amendment order 2014. Cabinet secretary, I welcome new officials with you. We have Stella Smith, legal services team leader, civil law and legal system and Alistair Smith, sister director of legal services. You're not related. You don't need to say it so quickly, but it's a sign. Cabinet secretary, you can give us evidence in advance of the debate in this instrument, please. We've been here today to assist the committee in its consideration of the legal profession and legal aid Scotland act 2007 membership of the Scottish legal complaints commission amendment order 2014. When the SLCC was created in 2008, schedule 1 to the 2007 act stated that the board would consist of a total of nine members. This would be made up of five non-lawyer members, including the chair and four lawyer members. Paragraph 27 of schedule 1 of the legal profession and legal aid Scotland act 2007 allows for Scottish ministers to mend by order the number of members and also the composition of the board. The legal profession and legal aid Scotland act 2007 membership of the Scottish legal complaints commission amendment order 2010 increased the size of the board from nine members to 12. The reason for this increase was that the periods of appointment of all the board members came to an end at the same time. Increasing the numbers on the board allowed retirements to be staggered and in turn this allowed the commission to always retain a number of experienced members. The 2010 amendment has successfully staggered the periods of appointment so this situation should not arise again. In the intervening years though, through retirement of members, the size of the board has decreased once more to nine. This is, of course, the number of members which Parliament originally provided for in enacting the 2007 act. I am satisfied that the commission is able to function well with a nine member board and that a larger board is not required, but it is appropriate to make sure that the composition of the board matches up with the requirements of the act. Those amendment regulations bring the statute back into line with current practice and I hope that this is useful to the committee and I am happy to take any questions. What the cabinet secretary has just said makes it all much more understandable, but that is not mentioned in the policy note at all. The policy note says that the board is currently operating with nine members and that 12 members are not required or affordable for the organisation and that certainly concerned me that we were somehow straying from what was not complying with the legislation for reasons of affordability, but you are saying that that is not the case anymore. I do not think that it is a question of affordability, they are operating there. There is obviously, and I think that his members will commit to, you will know to the ongoing debate between the profession and indeed the commission about how much should be charged and what tover, but I think that the basis here is that they can operate fine with nine. There was obviously a gap in terms of the legislation when it was enacted in 2007, and I remember it coming before me where we had to expand it because otherwise you were going to have a commission that was going to have very inexperienced members, so it was expanded to deal with that oversight that had not been factored in at the time, so we could get a smooth transition, but I think it operates clearly in balance with nine and as I say, I think you might find that the profession would be objecting to any increased costs, costs for all walks of life I think are clearly important at the present moment, so it is not financially driven as such, it is ensure the correct balance and to get us back to where Parliament wanted to be in 2007 but had perhaps not framed the legislation as well as perhaps it should have to allow for a transition. It's getting nearer on what I understood to be the case, cabinet secretary. The order replaced the order laid in June 2014, which was withdrawn after incorrectly stating the number of legal or lay members of the board and that this arose due to misunderstanding between the Scottish Government and the Scottish Legal Complaints Commission, so was that misunderstanding an error just read the number of members of the board or was it also about the composition of those members in terms of the number that were lay and the number that were professional? I think that there was just an error in the balance between lay and legal members. There was nothing more to it than that. I think that the Scottish Legal Complaints Commission is working very harmoniously. There are always challenges and tensions between the profession and them given the nature of the job that they understandably have to do, but it was a human error. The appropriate changes have been made and, as I say, this is to get us back, where probably in hindsight we should have been in 2007 had we managed to stagger the membership of the board, but that hadn't been done so in 2010. What we required to do was to expand the membership so that we could have a continuation so that we had people with experience who would run on, so, as I say, this was an error that occurred in 2007. In retrospect, we wish it hadn't, but the right thing was done to get the commission through it to ensure that we had stability and experience, but we have that stability and experience and nine operate perfectly harmoniously and well. I am now moving on to the debate item 4. I had asked the minister please to move motion S4M10964, that the draft justice committee recommends that the legal profession and legal Scotland act, that's not correct, that the committee recommends that the motion, I'll take it simply. I invite the minister to move motion S4M10964, please minister. Do any members wish to speak to the debate on the motion? Thank you. The question is that motion S4M10964 be agreed to. Are we all agreed? I'm required to report on all the affirmative instruments. Are you content, committee, to delegate a thought of me to sign off this report? Thank you very much. Thank you, cabinet secretary, for officials with attendance. Move on to item 5. It's consideration of one negative instrument. The Tathland Edition Scotland Act 2003, rural housing bodies amendment number 2, order 2014, SSI 2014, oblique 220. The delegate powers and law reform committee considered this instrument at its meeting on 19th August and agreed that it did not need to draw the attention of the Parliament to any grounds within its remit. Do members have any comments in relation to this? I think that it's excellent. I hadn't realised that, in these rural areas, by extending it to I think that it's Mullen Iona, that the first call back from a housing association sale is back to the housing association, protecting the integrity of the island community. It's an excellent move forward, so there we are. Are you content to make no recommendation in relation to this instrument? Our next item 6 is consideration of an instrument that is not subject to any parliamentary procedure. The Victim and the Witness Scotland Act 2014, commencement number 2 and transitional provision, order 2014, SSI 2014 oblique 210. The DPLR committee considered this instrument at its meeting on 12th August and agreed to draw the instrument to the attention of Parliament. The committee had previously negotiated arrangements with the Scottish Government for the management of commencement orders that contain complex transitional provisions. Under those arrangements, the Government has agreed that such instruments will be accompanied by a policy note to assist the DPLR committee in its scrutiny and that it will aim to allow at least 40 days between an instrument being laid and the date for it coming into force. In this case, only 19 days were allowed and the policy note did not adequately explain the policy intention behind the instrument. The DPLR committee has therefore written to the Government and to the Standards, Procedures and Public Appointments Committee regarding the procedure relating to the scrutiny of commencement orders containing complex transitional provisioners. Are members happy to endorse the DPLR committee's concerns? In addition, do you have any other comments in relation to this? No, it does seem remiss, does it not? There is a whole lot of stuff that is coming into force. Many people do not understand that an act of Parliament does not all come into force. All the sections do not come into force at the same time. It is important to know when they do come in force and why. It is a very reasonable point. Item 7, the EU opt out. The members have received an update from the Ministry for Community Safety and Legal Affairs. The current negotiations arise from the UK Government's decision to opt out of all police and criminal justice measures adopted prior to the Lisbon Treaty. The letter provides further details of recent changes to the list of measures that the UK is proposing to opt back into and states that the Scottish Government is content with the UK Government's interpretation of how any traditional arrangements might be determined. Before I ask for members' comments, Roddick, as our EU reporter, I would like to ask you for your comments first. I would obviously like to put on record our thanks for the briefing that we had from the Scottish Government officials on this matter, which has really clarified things. The only real comment that I would make is that I am satisfied at the moment that the UK Government is intent on doing the best it can to avoid transitional measures being necessary. I hope that the UK Government will continue to liaise with the Scottish Government so that we know what is going on. I hope that the situation will be resolved by the end of November.