Clause 58

Regulatory Enforcement and Sanctions Bill [Lords] – in a Public Bill Committee at 9:45 am on 19 June 2008.

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Consultation and consent: Scotland

Question proposed, That the clause stand part of the Bill.

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee

The clause touches on an issue alluded to by my hon. Friend the Member for Glasgow, North the other day, so I thought that it might be worth setting out what we hope to achieve in the provision. My hon. Friend pointed out that the Procurator Fiscal Service and the Lord Advocate decide on prosecution matters in Scotland. The clause recognises that. It states:

“A Minister of the Crown must obtain the consent of the Lord Advocate before making an order under this Part in relation to an offence in Scotland.”

There are two issues involved: the legal issue and the devolution issue. I will deal with devolution first. Clause 56 is clear:

“An order under this Part may not, except for consequential purposes, make any provision which would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament.”

We are familiar with the concepts of devolved and reserved matters.

Clause 58 requires that a Minister proposing to make an order affecting the prosecution of any offence in Scotland must obtain the agreement of the Lord Advocate. The Lord Advocate is responsible for prosecution in Scotland and should therefore consent to the proposed changes. Giving regulators civil sanction powers would remove that decision from the Lord Advocate, so we thought that it was absolutely right to put the provision into the Bill.

Subsection (2) requires a Minister proposing to make an order affecting the powers of a regulator that is a local authority in Scotland to consult Scottish Ministers.

Photo of Ann McKechin Ann McKechin Labour, Glasgow North

Where a local authority in Scotland becomes the primary authority for a company that operates in other parts of the United Kingdom, what would be the procedure if the primary authority wanted to enforce action in some other part of the United Kingdom? Would the relevant Minister still be required to take the authority of the Lord Advocate or a Minister of the Scottish Executive, who have no function outwith Scotland? Will my hon. Friend clarify the position?

Photo of Pat McFadden Pat McFadden Minister of State (Department for Business, Enterprise and Regulatory Reform) (Employment Relations and Postal Affairs), Member, Labour Party National Executive Committee

It is important to note the difference between subsections (1) and (2). Subsection (1) concerns the Lord Advocate and action in Scotland; subsection (2) concerns the powers of local authorities as regulators. The situation to which my hon. Friend refers already exists in some cases under the home authority principle.  My hon. Friend the Member for Dundee, West is not with us this morning, but my understanding is that Dundee city council is a home authority that has four operations that operate throughout the UK. That situation is already provided for.

Under subsection (2), if a Minister proposes to make an order that affects the power of a regulator that is a local authority in Scotland, he would be required to consult Scottish Ministers, because they obviously have an interest in the function of local authorities in Scotland. For the avoidance of doubt, subsection (3) defines the term “local authority in Scotland”. We have set out the application of the Bill in terms of both reserved and devolved functions, but in this clause we also set out important procedural matters that respect the position of the Lord Advocate in Scotland.

Question put and agreed to.

Clause 58 ordered to stand part of the Bill.

Clause 59 ordered to stand part of the Bill.