Legislative Consent Memorandum
Crime and Security Bill
Draft Legislative Consent Motion
1. The draft motion, which will be lodged by the Cabinet Secretary for Justice, is:
"That the Parliament agrees that the relevant provisions of the Crime and Security Bill, introduced in the House of Commons on 19 November 2009, relating to the regulation of the private security industry, so far as these matters fall within the legislative competence of the Scottish Parliament, should be considered by the UK Parliament."
Background
2. This memorandum has been lodged by Kenny MacAskill, Cabinet Secretary for Justice, under Rule 9B.3.1(a) of the Parliament's standing orders. The Crime and Security Bill was introduced in the House of Commons on 19 November 2009. The Bill can be found at:
http://services.parliament.uk/bills/2009-10/crimeandsecurity.html.
Content of the Crime and Security Bill
3. The UK Crime and Security Bill contains a package of measures under the "protection" theme and will be designed to step up the protection for communities against a range of threats, including violence, anti-social behaviour and financial exploitation. The measures have been designed to focus on issues that will have the maximum impact on the public's key concerns. The Bill primarily applies to England and Wales. However, there are some provisions which apply to Scotland and one set of provisions in particular - amendments to the Private Security Industry Act 2001 ("the 2001 Act") - which (i) apply to Scotland and are for devolved purposes and (ii) alter the executive competence of the Scottish Ministers.
Provisions which relate to Scotland
4. Clauses 39 and 40 of the Bill amend the 2001 Act on matters within the Parliament's legislative competence, while clause 45 confers a new power on the Scottish Ministers.
Amendments to the 2001 Act
5. The 2001 Act introduced a regulatory regime for the licensing of individuals working in designated sectors of the private security industry in England and Wales. The Serious Organised Crime and Police Act 2005 (c.15) extended this regulatory regime to Scotland. As responsibility for the regulation of the private security industry is devolved to the Scottish Parliament a Legislative Consent Motion was agreed on 2 February 2005. The 2001 Act has since been extended to Northern Ireland and licensing will be introduced there from 1 December 2009, providing UK-wide regulation.
6. In so far as they apply to Scotland, the provisions in the Bill amending the 2001 Act do two main things:
- Clause 39 extends the requirement to hold a license for carrying out the activities of a security operative to businesses and gives the Scottish Ministers the power to designate by order the activities of a security operative for which such a license is required.
- Clause 40 extends the current Approved Contractor Scheme to include companies providing in-house security services.
New power exercisable by Scottish Ministers
7. Clause 45 gives Scottish Ministers responsibility for bringing clauses 39 and 40 into force, in so far as they apply to Scotland, following consultation with the Secretary of State.
New offence
8. One other provision in the Bill will apply in Scotland - the proposed creation under clause 42 of a specific offence for a person in possession of an air weapon to fail to take reasonable precautions to prevent young people from gaining unauthorised access to it. This offence will apply in Scotland but it is a reserved matter and there are no legislative implications for Scotland.
Reasons for seeking a legislative consent motion
9. The 2001 Act provides a UK-wide regulatory regime for the regulation of the private security industry. The Security Industry Authority (SIA) is responsible for regulating individuals working in designated sectors in the industry. It is an offence to employ a security industry operative who is not licensed. Regulation on a UK-wide basis ensures consistency of approach; allows Scottish companies to operate across the UK on a level playing field and reduces bureaucracy. Regulation has also been helpful in supporting the police in preventing crime by providing an additional enforcement tool.
10. The UK Government has identified a particular issue with regards to vehicle immobilisation, which is regulated in England and Wales, where regulation applicable to individual operatives has not been successful in preventing abuses. To tackle this, clause 39 of the Bill introduces mandatory business regulation of vehicle immobilisers. As vehicle immobilisation on private land is illegal in Scotland (Black & Anor v Carmichael (1992)), regulation of individual vehicle immobilisers does not extend to Scotland and there is consequentially no need for companies to be regulated. However, the clause also allows mandatory licensing to be introduced by order for other particular sectors within the private security industry. As far as Scotland is concerned, this order-making power is given to the Scottish Ministers who must consult the Secretary of State before exercising that power.
11. Although there are currently no plans to extend mandatory regulation of businesses to any other sector of the industry, it is sensible for this new order-making power to extend to Scotland. This will allow Scottish Ministers to introduce regulation of businesses in the private security industry whenever that becomes necessary or desirable.
12. To ensure that consistency across the UK is maintained, it is sensible for this provision to be included in UK legislation. However, as this is a provision which (i) applies to Scotland and is for devolved purposes and (ii) alters the executive competence of the Scottish Ministers, the consent of the Scottish Parliament is required for the provision to be enacted by the UK Parliament.
13. The Security Industry Authority operates a voluntary Approved Contractor Scheme (ACS) for the private security industry. The ACS provides users of private security firms with reassurance that the company only uses licensed staff and that they meet rigorous standards set by the SIA, which are robustly enforced. The scheme currently only applies to companies who are providing private security operatives under contract. Clause 40 of the Bill provides for the scheme to be extended to include in-house providers of security services. This is aimed primarily at vehicle immobilisation and door supervision companies to allow these companies to develop their businesses by providing services (such as training) to other companies and to apply for ACS status. This provision is to be extended to Scotland to allow in-house door supervision companies to seek ACS status as a demonstration of their commitment to quality. Again, to ensure consistency of approach across the UK and to ensure ACS status can be extended at the same time in Scotland as the rest of the UK, it is sensible to include this provision in the UK Bill. However, as this is a provision applying to Scotland which is for devolved purposes, the consent of the Scottish Parliament is again required.
14. Clause 45 of the Bill gives Scottish Ministers responsibility for bringing clauses 39 and 40 into force in so far as they apply to Scotland, following consultation with the Secretary of State. As this is a provision which alters the executive competence of the Scottish Ministers, the consent of the Scottish Parliament is required for the provision to be enacted by the UK Parliament.
Consultation
15. The UK Government has consulted with the vehicle immobilisation industry in advance of these provisions. A full regulatory impact assessment will be carried out before the provisions are commenced. There would also be full consultation before this provision was extended to any other sector.
Financial implications
16. There are no direct costs to the Scottish Government. The SIA is funded by fee income for licenses and any additional costs would be borne by the industry direct. A full regulatory impact assessment, including the cost of the additional regulation, would be carried out before this provision was extended to include Scotland.
Conclusion
17. The Parliament is asked to agree that the provisions in the Crime and Security Bill relating to the regulation of the private security should, in so far as they apply to Scotland, are for devolved purposes and alter the executive competence of the Scottish Ministers, be considered by the UK Parliament.
SCOTTISH GOVERNMENT
December 2009