Marine and Coastal Access Bill [HL]

My Lords, there is nothing worse than a noble Lord moving an amendment saying that it is simple, straightforward and backed by the Law Society of Scotland. That makes my knees knock right from the start as I have no legal background. I am also awaiting someone who would be much better qualified to address this issue, my noble and learned friend Lord Davidson, but he will be here for the next business, which is also of great import. It therefore falls to me to respond to the noble Lord. We in the department did not think that this was a simple amendment at all. In fact, we thought that it raised some pretty significant issues. My reply may therefore not satisfy the noble Lord, particularly as I note his additional point that Bill does, in its subtle way, recognise differences in Scotland from time to time. However, we will seek to convince the noble Lord that the Bill should remain as it is and that the amendment should not be carried. The amendments have the effect of removing a justice of the peace from the court officials who are able to authorise a warrant in Scotland. Clause 122 of the Marine (Scotland) Bill contains similar provisions to Clause 239 of the Marine and Coastal Access Bill and provides that a justice may issue a warrant to search dwellings. "Justice" is defined in Clause 141 as, ""a sheriff, stipendiary magistrate or justice of the peace"." So it has been considered appropriate for stipendiary magistrates and justices of the peace to have the power to grant warrants for the search of dwellings for the equivalent Scottish provisions. Our own provisions at Clause 239(5)(c) have of course been agreed by the Scottish Executive. It seems a strange discrepancy to remove "justice of the peace" from our provisions when the Scottish Executive is content for this to be reflected in this Bill, and for such officials to issue warrants in Scottish legislation. I recognise that there is a distinction between the Scottish Executive and the Scottish law courts, but the noble Lord will appreciate that throughout the Bill we sought to emphasise the extent to which we are taking the different parts of the United Kingdom into account, particularly the work that Scotland is still doing on its Marine Bill. That is evidenced by how we have approached this issue. Additionally, the Scottish Executive could see no justification for restricting the issue of warrants in Scotland only to sheriffs and stipendiary magistrates. The Scottish Executive have confirmed that in Scotland, justices of the peace are trained in the issue of warrants and indeed are already used to issuing them for the purposes of entering dwellings under other legislation; for example, under Section 125 of the Immigration and Asylum Act 1999; under regulation 4 of the Zoonoses (Monitoring)(Scotland) Regulations 2007, which I have no doubt are well known to the House; and under paragraph 2 of Schedule 4 to the Building (Scotland) Act 2003, among other legislation. I am also mindful of the fact that justices of the peace in Scotland, who are lay members advised by a legally qualified clerk, have considerable responsibility, being able to impose up to 60 days’ imprisonment and fines of up to £2,500. The power for justices of the peace to issue search warrants is clearly not new. Similar provisions exist in the legislation from which the enforcement powers of the Bill have been consolidated. For example, in Schedule 2 to the Food and Environment Protection Act 1985, paragraph 7(3)(b) enables a justice of the peace in England and Wales, or a sheriff, stipendiary magistrate or justice of the peace in Scotland, to issue a warrant to search a dwelling. This is the same that we have provided for in Clause 239. Section 12 of the Sea Fisheries Regulation Act allows a justice of the peace to issue a search warrant. Section 19 of the Wildlife and Countryside Act 1981 enables a justice of the peace to issue a warrant to enter and search any premises. We have looked at similar legislation relevant to the Bill before the House today. More recent legislation, both in England and in Scotland, has followed the line of allowing justices of the peace to issue warrants to search dwellings. Section 12 of the Animal Health and Welfare (Scotland) Act 2006 permits JPs to issue warrants to enter any premises, as does the Health and Social Care Act 2008 and Section 29H of the Racial and Religious Hatred Act 2006, which applies in both England and Scotland. Very recently, the Aquatic Animal Health (Scotland) Regulations 2009—a lively issue which the House will recall—permitted JPs to do this. There are many other examples from new and old legislation with which I could entertain the House. So we are not creating anything novel here; we are simply following precedent for the ability of justices of the peace to issue warrants for officers to enter and search. If we remove the ability for justices of the peace to issue warrants for entering and searching dwellings in Scotland, we may set a precedent that will go far wider than this Bill. It is not the intention of the Bill to alter legal precedent in relation to powers of lay magistrates in Scotland. That is far outside the compass of the Bill. I am not sure that the Law Society of Scotland would thank us if we set such a precedent within the framework of this measure. As there is no desire from the Scottish authorities to pursue this amendment, I hope that the noble Lord will withdraw it. If he does not wish to do so, he will see that I now have a powerful ally at my side in the shape of the noble and learned Lord the Advocate-General, whose expertise in Scottish law I would not hesitate to deploy. However, I am backed by the Scottish authorities who believe that the amendment should be withdrawn, and I hope that the noble Lord will do so.