Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011

My Lords, first and foremost, I congratulate the noble Lord, Lord McAvoy, on his maiden speech from the Labour Front Bench. He distinguished previous Labour Governments, but in a non-speaking role as a Whip. I welcome him to his post, and I am sure that, as he says, there will be many future occasions when we will engage in debate. I also thank my noble friend Lord Maclennan of Rogart and the noble Lord, Lord McAvoy, for their general support for the orders and for the important questions they raised. I will pick up some of the procedural points with regard to this order in relation to the 2007 Act. It has taken so long—it is four years since the passage of the Act—because the Act was not brought into effect for some time after it was passed by the Scottish Parliament. Looking at the order, we see the amount of work that has gone in to trying to make sure that all the different pieces of legislation which are covered by it have been brought together. I am aware that a considerable amount of work has been done on that. In my opening remarks, I referred to a stop-gap, temporary measure that was passed using the negative procedure earlier this year. That is repealed by this order now that we have the full provisions in place. A considerable amount of work goes on between the lawyers in my department, the Office of the Advocate-General, and the Scottish Government legal department, looking at issues when legislation comes forward. There is also a programme of work on Scotland Act orders to identify priorities in co-ordination between the United Kingdom and Scottish Governments. Both Governments feed into that programme, which leads to the orders that we take forward. Indeed, I think this morning an order was debated in another place that we will have the pleasure of looking at when we return in the autumn. With regard to the point made by the noble Lord, Lord McAvoy, about Wales, it is my understanding that under the Welsh Assembly, some legislation now is in the Welsh language. It is reflecting that provision from the Welsh National Assembly that these provisions are in this order in Welsh. I have no doubt that if, at some stage, the Scottish Parliament passes a measure in Gaelic—that is on the heading of the primary or secondary legislation—that, too, would find its way into our orders. I hear the point about the consultation and the Law Society. It has been a matter of routine that the Scotland Office was not consulted on orders which have been taken under the Scotland Act 1998. The majority of them are consequential to legislation which has been passed by the Scottish Parliament. Of course, the 2007 Act was well consulted on, deliberated on and debated as it went through its procedures in the Scottish Parliament. Substantially, this order gives it effect in a number of different ways in relation to United Kingdom legislation, which it was not possible for the Scottish Parliament to do. But the policy matters which are at the core were dealt with by the Scottish Parliament when the Bill went through and became an Act. On the criminal procedure, publicly funded legal systems will be made available. The 2010 Act includes provisions to amend the Legal Aid (Scotland) Act to confer an order-making power on Scottish Ministers to make legal advice available to any person detained under the amended detention provisions. In such circumstances they may provide without reference to Section 8 of the Legal Aid (Scotland) Act 1986, which sets out the financial eligibility criteria for advice and assistance. The aim of the order-making power is to ensure that financial eligibility requirements would not act as an impediment to the availability of legal advice as a fundamental requirement of the new procedures. It is very obvious that if someone is brought in for detention and needs immediate access to a solicitor, suddenly to start filling in forms could act as an impediment to what is being sought to be achieved. It was considered to be impractical for a solicitor to have to try accurately to verify a suspect’s financial circumstances while they were detained. Of course, there was a need to ensure that all suspects can obtain legal advice. The ongoing, continuing discussions on the detail of the agreement to be reached between Scottish Ministers and the United Kingdom Government—it was agreed in principle that it will happen with the detail—is still to be worked out. When it is concluded it will follow on to this order when it goes through. My noble friend Lord Maclennan of Rogart and the noble Lord, Lord McAvoy, raised the period of detention. It is perhaps useful to remind ourselves that the 2010 legislation was emergency legislation in the Scottish Parliament—I think that it was passed in a day. Prior to introducing the emergency legislation in the Scottish Parliament, the Scottish Government consulted with a number of stakeholders, including the Law Society of Scotland, the Crown Office and Procurator Fiscal Service, the Association of Police Chief Officers in Scotland, the Scottish Police Services Authority, the Scottish Legal Aid Board and the Scottish Court Service. In particular, the Scottish Government consulted with a number of these bodies in respect of the decision to extend the period for which suspects may be detained by the police. During the consultation, ACPOS, the Scottish Police Services Authority and the Crown Office and Procurator Fiscal Service considered that an extension of some form was required, although the Law Society considered that any extension should not feature in the emergency legislation. Instead, the Law Society argued that options for change should be considered by a judicially led expert review. This matter is being considered by the Carloway review but the Scottish Government took the view that they did not consider that waiting until such time as the review reports, and reforms coming from the review are passed into law, was a viable option when there was already evidence that the six-hour period of detention in some cases would be too short, particularly in complex cases where a solicitor had to be brought in and, therefore, that underlay the decision to extend the time period. This order seeks to put in terms of reserve functions, the UKBA and Her Majesty’s Revenue and Customs in exactly the same position with regard to the provisions as is the case with Scottish police officers. The purpose of the order is consistency, which is why we have used and adopted the same time periods as there are for the Scottish police. It is important that there is one set of rules which apply to the questioning of suspects in Scotland. Indeed, it may well be a joint investigation with the police and it would become very complicated if one body was operating under a different set of rules from the other. At the end of the day, the one prosecuting authority—the Lord Advocate and the Procurator Fiscal—will lead and take forward the prosecution. My noble friend Lord Maclennan asked about the counterposition, as it were. It is the case that in England and Wales suspects are able to access publicly funded legal advice following arrest. The general rule in England and Wales is that the police or designated customs officials may not detain a person for more than 24 hours without charging him or her. If my memory serves me correctly, this goes back to the Police and Criminal Evidence Act 1984. However, police or UKBA detention may be extended for up to 36 hours in England and Wales when authorised by an officer of the appropriate rank. With regard to cross-border enforcement, a police officer in England and Wales who has reasonable grounds for suspecting that an arrestable offence has been committed, or attempted in his or her own country, and that the suspected person is in one of the other countries—for example, Scotland and Northern Ireland—may arrest the suspected person without a warrant and take the person to the nearest designated police station in that country, or to a designated police station in the area in which the investigation is taking place, provided it appears to the constable that it would have been lawful for him to have exercised the powers had the suspect been in England and Wales. Therefore, the situation is not entirely parallel because a different detention regime operates in England and Wales; as is now the case in Scotland with the police, and will be, if these orders go through, with regard to the UKBA and HMRC. I hope that I have answered the questions which noble Lords have raised. As I say, this is an example of two Governments working together and providing a solution which ensures that the effect of legislation passed by the Scottish Parliament is implemented in a way that covers the responsibilities of the United Kingdom Parliament. It is important that we have the provision to do that. Therefore, I commend these orders to your Lordships. Motion agreed.