Hansard

Good morning. I thank the committee for altering the normal order of consideration of amendments. As members know, the advisory group on stop and search was not due to report to me until 31 August, so the committee’s scheduling has been extremely helpful in allowing us to debate the matter in light of the advisory group’s recommendations. I have given a commitment to implement the advisory group’s recommendations, and it is important to look at this group of amendments in that context. My aim is to use the amendments to make the legislative change that we need in order to implement the advisory group’s recommendations in full. I asked the advisory group to consider whether consensual stop and search should end and whether any additional steps would be required, including any consequential legislation or changes in practice. I also asked it to develop a draft code of practice to underpin the use of stop and search in Scotland. The advisory group had a broad membership that included Police Scotland, the Scottish Police Authority, the Crown Office and Procurator Fiscal Service, academics, representatives from Scotland’s Commissioner for Children and Young People, and Anne Houston, who is chair of the Scottish child protection committee chairs forum and former chief executive of Children 1st. I asked the advisory group to report to a tight timescale to match the progress of the Criminal Justice (Scotland) Bill. I am grateful to the group, and in particular to John Scott, who led it, for delivering the report to last month’s deadline. I am sure that the committee will agree that the report is comprehensive, balanced and considered, and that it makes clear and well-reasoned recommendations. In the summer, I indicated that I would seek an early opportunity to legislate, and that is what we are doing now. I hope that that reassures the committee that we are serious about implementing all the advisory group’s recommendations swiftly and delivering the new code of practice as soon as we practically can. I thank Alison McInnes for her contribution to the stop-and-search debate over recent months, and for lodging amendments 50 to 53. As she knows from our recent discussions, it has not been possible to blend her amendments with those of the Government. In my view, implementation of the recommendations requires a co-ordinated set of amendments that are more detailed than amendments 50 to 53. We looked at the matter carefully, but amendments 50 to 53 simply do not lend themselves to being changed in the way that would be required. My conclusion was that the most effective way to ensure proper implementation of the advisory group’s recommendations was to draft a new set of co-ordinated amendments as a single package, which is what we have done. Amendments 223 to 233, in my name, form a set that hangs together. They form a new part of the bill that is divided into two chapters. The amendments will insert the new part, section by section. Amendment 223 ends consensual stop and search of persons who are not in police custody. Its effect will be that police officers will be able to search such a person only when they are explicitly permitted to do so by an enactment or warrant. That is what has become known as statutory search. Amendments 229, 232 and 233 require a code of practice to be implemented, after a period of consultation. The consultation, which is to be both public and with specific stakeholders, will be followed by a requirement for parliamentary approval, under the affirmative procedure. A copy of the code of practice is also to be laid before Parliament. Amendment 230 provides for the code of practice to be kept under regular review thereafter. The original code will require to be reviewed within two years of coming into effect, and thereafter a review will be required no later than every four years. Together, amendments 223, 229, 232 and 233 implement advisory group recommendations 1 to 4, and they follow the advisory group’s recommendations in relation to making, publishing and consulting on the code of practice. Amendment 231 gives the code the appropriate legal status. A court or tribunal in civil or criminal proceedings will have to take the code of practice into account when determining any questions arising in the proceedings to which the code is relevant. Amendment 227 ensures that consensual stop and search will end under amendment 223 at the point at which the original code of practice comes into effect. Proposed subsection (1) of the new section to be inserted by amendment 227 achieves that by stating that the provision in amendment 223 is to commence on the same day as the original code of practice takes effect under the provisions in amendment 233. That implements advisory group recommendation 8. Advisory group recommendation 6 is that the Scottish Government should hold an early consultation on whether to legislate to create a specific power for police officers to search children under the age of 18 for alcohol. I have said that we will carry out a consultation on that. The advisory group was unable to form a concluded view as to whether such a power was necessary or desirable, which is why it recommended that there should be a consultation. I will decide whether such a power is necessary after the consultation. If, after consultation, I decide that such a power is necessary, I would wish to seek the Parliament’s consent to introduce that power in a timely manner. Amendment 226 contains an enabling provision that would facilitate that. It would allow an affirmative Scottish statutory instrument to be made to provide a power to stop children under 18 and search them for alcohol. The amendment would also allow the SSI to provide a power to search a person who is over 18 where that person is hiding a child’s alcohol in order to prevent it from being found. However, unlike consensual stop and search, such powers will only ever be able to be exercised where the police have reasonable grounds for suspecting that the person has alcohol in their possession. As I said, decisions on whether to make such an SSI will depend not only on the consultation outcome but, ultimately, on that SSI being approved by the Parliament. The provision is also subject to the sunset clause in proposed subsection (2) of the new section that will be inserted by amendment 227. The result is that, if no regulations are made within two years of the original code of practice coming into effect, the provision will cease to have effect. Amendment 224 addresses the potential but limited gaps in statutory powers that we have identified. There is a possible lack of clarity in the current law and a risk that the complete abolition of consensual stop and search under amendment 223 might mean that the police lack the powers that they need to search persons in certain circumstances—in particular, persons who have not been arrested but who are nevertheless in the hands or safekeeping of the police under some other legal authority. We have identified several circumstances in which the police have statutory power to hold and/or transport a person from one place to another to safeguard that person’s safety and wellbeing. In order to look after that person and also to protect the police officers looking after them, the police need to be able to search them before holding and/or transporting them. In particular, there is currently no express power of search when the police take a drunk person to a designated place under section 16 of the Criminal Procedure (Scotland) Act 1995. There is no express power of search when detaining a person under the Mental Health (Care and Treatment) (Scotland) Act 2003 or under part 6 of the Criminal Procedure (Scotland) Act 1995, or when detaining a child for their own welfare under section 56 of the Children’s Hearings (Scotland) Act 2011. As I am sure the committee will understand, the gaps that we have identified cannot be left unfilled. Amendment 224 addresses those gaps. It contains a general provision that would allow constables to search a person in the circumstances that I have mentioned—that is, when the person is to be held or transported by the police under specific authority of an enactment, warrant or court order. It should be noted that the power of search is expressly limited to not just specific circumstances but a specific purpose, namely to ensure that the person who is in the hands of the police is not in possession of something that could be harmful. That power was not included in the advisory group’s recommendations, no doubt because the circumstances that I have outlined were not within the group’s remit. However, I believe that those powers are necessary for the narrow purposes of prevention of harm to self and others in the limited circumstances in question. The amendment will create a new power of statutory search in those limited circumstances whereby the new power falls within the authority for statutory search referred to in amendment 223. The committee may wish to know that John Scott is aware that we propose to introduce the new power and that he considers it to be a sensible proposal. 10:15 Amendment 225 imposes a duty on a constable, when deciding whether to search a child, to treat the wellbeing of the child as a primary consideration. That replicates the effect of section 42 in the context of stop and search. The amendment delivers the intention behind advisory group recommendation 7 and amendment 53, in the name of Alison McInnes. I shall return to that point later, when I talk about the non-Government amendments in the group. Amendment 228 provides a definition of “constable” and “police custody” for the purposes of the proposed new chapter. In summary, amendments 223 to 233, if accepted as a package, will deliver all the legislative changes required to implement advisory group recommendations 1, 2, 3, 4, 6, 7 and 8 in full. For the sake of completeness, the committee will wish to know that implementation of advisory group recommendations 5, 9 and 10 does not require legislative change. Recommendation 5 concerns a transfer of information from Police Scotland to the Scottish Police Authority and the publication of that information. Recommendation 9 concerns the need for a detailed implementation programme, and recommendation 10 is that there should be discussions about the most appropriate way of dealing with children and vulnerable adults who come to notice during stop-and-search situations. I turn to the non-Government amendments. For the reasons that I have outlined, I consider that the intentions behind amendments 50 and 51, in the name of Alison McInnes, are more effectively delivered by the fuller package of provisions contained in amendments 223, 229, 230, 232 and 233. I therefore ask Alison McInnes not to move amendments 50 and 51. I also encourage Alison McInnes not to move amendment 52, which has been superseded by advisory group recommendation 5, which covers the transfer of information from Police Scotland to the Scottish Police Authority and the publication of that information. Although I support the principle of publishing information on stop and search, I do not consider that it is appropriate to include such a requirement in primary legislation. There are other, more appropriate ways to publish that information, as recommended by the advisory group. Amendment 53, in the name of Alison McInnes, concerns the wellbeing of the child and mirrors advisory group recommendation 7. My initial instinct was to support amendment 53. However, on closer inspection, neither amendment 53 nor advisory group recommendation 7 would quite achieve what they seek to achieve, because of their wording and the provision’s proposed placing in the bill. Because of the provision’s proposed position in section 42, and the fact that it is not restricted to children who are not in police custody, amendment 53 goes too far, because it targets all searches in all circumstances. That means that it would unnecessarily and inappropriately affect the power to search people who are being dealt with by the police under the regime for arrest, custody and questioning in part 1. Such people are already protected by section 42. Amendment 53 would also go further than advisory group recommendation 7, which is explicitly limited to children who are not in police custody. As I said, amendment 225 imposes a duty on constables, when deciding whether to search a child, to treat the wellbeing of the child as a primary consideration. That exactly delivers the intention behind amendment 53 and advisory group recommendation 7. I therefore ask Alison McInnes not to move amendment 53. Amendment 229A, in the name of Alison McInnes, would have the effect of specifying the information that the code of practice must contain. As I said, my intention is to implement the advisory group’s recommendations in full. The advisory group looked at the matter closely, and deliberately decided not to be prescriptive about what the code should contain. It provided a draft code and recommended that we carry out a consultation on the draft. That is what I intend to do, and I have asked John Scott and the advisory group to help us to develop the code of practice in light of the consultation responses. Parliament will have the opportunity to debate and vote on the code before it is finalised. The process for the code of practice is designed to ensure that the code contains everything that it should. I therefore encourage Alison McInnes not to move amendment 229A. Amendment 233B, in the name of Alison McInnes, would provide that regulation to bring into effect the first code of practice must be laid within one year of the bill receiving royal assent. I agree that that is a reasonable time period and I thank Alison McInnes for lodging the amendment. I am content to support amendment 233B, but we may seek to refine the provision at stage 3 if that appears to be necessary on looking at it again when it appears in the bill. I undertake to work with Alison McInnes on the matter. Amendments 230A and 233A, in the name of Alison McInnes, are about reviews of the code of practice. Amendment 230A seeks to ensure that each review of the code of practice is completed within six months of the review’s start date. I agree with the intention behind ensuring that reviews are carried out as quickly as possible and would certainly agree that any review should be carried out within six months. I am therefore content to support amendment 230A and I thank Alison McInnes for lodging it. Again, we may seek to refine the provision at stage 3 if that appears to be necessary on looking at it again when it appears in the bill. Of course, we will work with Alison McInnes on the matter. The effect of amendment 233A would be that, after each review of the code of practice, regulations would have to be laid for a new code to come into effect, whether or not the code had been changed. I agree with the principle that reviews of the code should be kept under scrutiny. However, I consider that amendment 233A would create an odd result, because it would require a revised code of practice to be brought into effect even when the earlier version of the code had not been revised. In addition, amendment 233A would go beyond the advisory group’s recommendation, which was that any revision to the code should be subject to parliamentary approval. Amendment 230, in conjunction with amendment 233, will ensure that that happens. Any revised code will not take effect until Parliament has had the opportunity to debate and vote on the matter. I therefore encourage Alison McInnes not to move amendment 233A. Amendment 232A, in the name of John Finnie, would add the Police Investigations and Review Commissioner to the list of organisations that should be consulted when the draft code of practice is prepared. The PIRC would be covered by proposed new subsection (2)(h) of the new section that amendment 232 will insert, which refers to “such other persons as the Scottish Ministers consider appropriate.” However, I have no objection to the PIRC being specifically included. I am therefore content to support amendment 232A, although we may seek to move the provision to a different place in the list at stage 3, for technical reasons. I can summarise as follows. Amendments 223 to 233, if accepted as a package, will deliver all the legislative changes required to implement the recommendations of John Scott’s advisory group. I am content to support amendments 230A, 232A and 233B, but I encourage Alison McInnes not to move amendments 50, 51, 52, 53, 229A and 233A. I hope that it is clear to the committee that I have taken great care over how to approach stop and search and that I have taken into account suggestions made by Alison McInnes, John Finnie and other members on the amendments. I will continue to do so between now and stage 3, to build as much consensus on the issue as possible. I move amendment 223.