Official Report: Minutes of Evidence

The Chairperson (Ms Bunting): We have with us the following DOJ officials: Debbie Corry, who is head of the organised crime branch; Fiona Scullion, who is head of the policing, strategy and engagement branch; and Matthew Bunting — no relation, Matthew; I will let you off with that one — who is a policy adviser. They are all with us today to give oral evidence on the Bill.

Here is a reminder of the background. The Department laid a memorandum on 14 May advising that consent was not being sought, but the legislative consent memorandum (LCM) and motion seeking consent was then laid under Standing Order 42A(4)(a) the next day. That is where we are with this. Obviously, we have to have our report produced by 5 June. That is when we will consider that report. If anything needs to be raised, this is the day to get it done, because, immediately after this, we need to take a decision on where we are with the LCM.

Folks, you are very welcome. Thank you very much for taking the time to present to us today. We appreciate it. We are sorry that we are running slightly behind time, but you will understand that that was a significant report from the Criminal Justice Inspection. I will hand over to you for opening remarks, and then I will open the floor to members.

Ms Debbie Corry (Department of Justice): Thank you for the opportunity to come along today. We are grateful to the Committee and the Clerk for slotting us in to your very busy agenda.

Members will be aware that the Department recently laid two separate legislative consent motions. One is for the Border Security, Asylum and Immigration Bill, and the other is for the Crime and Policing Bill, which, I believe, we will come to after this one.

If members are content, I will start by explaining what the Border Security, Asylum and Immigration Bill covers, the measures that engage the legislative consent process and our anticipated timescales for the legislative consent motion.

Members were provided with a full written briefing on 23 April. That is when that first memorandum should have been laid, not on 14 May. There was an administrative error, and it should have been laid then, with, subsequently, the memorandum seeking consent laid later. At the outset, I acknowledge that we, too, have found the consent process for the motion challenging. The Bill has moved at pace through Westminster, and I fully appreciate that you will also be frustrated with the timescales.

I will give a brief overview of the Bill. It was introduced in Westminster on 30 January 2025. The overall intention is to create a new framework of enhanced powers and offences to improve UK border security and to strengthen the asylum and immigration process. It also contains various measures that will strengthen the ability of law enforcement agencies and the courts to tackle serious and organised crime.

The Bill contains a mix of excepted and reserved matters, some of which apply or are extended to Northern Ireland, and some of which are transferred and, therefore, require consent.

Overall, it has been quite a complex and unusual situation. Given the nature and overall topic of the Bill, the Home Office initially wrote to the First Minister and the deputy First Minister, and the Justice Minister was not formally engaged. There had been engagement at official level but not at ministerial level. Given that the Executive Office does not have any measures that require legislative consent in the Bill, the Minister of Justice took a decision to move forward with an LCM for the measures that fall within the justice remit, recognising that we have only a limited interest in the Bill. A further complicating factor is the fact that the Department for the Economy also has a measure in the Bill. The Department has agreed that it can use our LCM as a vehicle to progress that too.

Members will have noted that, in recent weeks, we have moved quickly. That is because we were somewhat concerned that the Bill appears to be moving at pace through Westminster, and we did not want to risk not bringing forward a legislative consent motion at this time in case it would gain Royal Assent before their summer recess. The Executive considered a paper at their meeting on 15 May and agreed that the memorandum could be laid.

You will wish to note that a further version of the Bill has since been published. That means that some of the clause numbers have changed. However, in order to reduce the risk of confusion today, we will refer to the clause numbers that were contained in the briefing that we provided to you. I emphasise that there have been no amendments to any of the measures for which legislative consent is being sought. They remain totally unchanged.

I will turn to the matters that engaged the legislative consent process in the Bill that relate to justice. There are three of those, two of which fall to my team, and one of which sits with my colleague in the policing strategy and policy division. The fourth measure is the responsibility of the Department for the Economy.

The first measure establishes a framework for allowing the Secretary of State for Transport, through the Driver and Vehicle Licensing Agency, to share trailer registration information with specific government bodies, including police. It authorises the Secretary of State for Transport to supply trailer registration information to the Home Office and designated law enforcement bodies, including UK police forces, HMRC and the National Crime Agency.

It also sets out how information shared under the legislation can be passed on by recipients, such as the Home Office or authorised policing personnel, allowing further disclosure to other public functionaries in the UK or abroad for specified purposes relating to policing, criminal investigations, law enforcement purposes and safeguarding national security.

The legislation ensures that these provisions do not override data protection or investigatory powers laws; clarifies definitions, including who qualifies as an "authorised person" or an "authorising officer"; and empowers the Secretary of State to define specific policing purposes through regulations after consulting relevant stakeholders, including police representatives, Scottish Ministers and the Department of Justice.

The second measure, which was also in the Criminal Justice Bill that fell prior to last year's general election, creates two new criminal offences relating to articles for use in serious crime. That includes possession of a "specified article" that will be used in connection with a serious offence and importing, manufacturing, adapting, supplying or offering to supply a specified article:

The specified articles will be defined in legislation. They include vehicle concealments that are used in the transport of illicit goods, templates for 3D-printed firearm components, and encapsulation machines and tablet presses that are used in the supply of illegal drugs. A "serious offence" is defined as one that is specified under part 2 of schedule 1 to the Serious Crime Act 2007. The associated penalty on summary conviction is imprisonment for a term not exceeding six months or a fine of up to the statutory maximum. The associated penalty on indictment is imprisonment for a term not exceeding five years, or a fine, or both.

The legislation also includes a delegated power to allow the Secretary of State to amend the list of specified items via secondary legislation. There is a requirement to consult the Department before doing so, and any changes must be considered by Parliament.

Finally, it amends the Proceeds of Crime Act 2002 by adding those offences to the criminal "lifestyle offences", which are at its schedule 5.

The third measure extends the offence of a breach of an interim serious crime prevention order (SCPO). Members will be aware that there are wider additions to serious crime prevention order provisions that are not being extended to Northern Ireland. This measure is being extended to all jurisdictions in order to maintain the integrity of the offence and to ensure its enforcement. It is only the offence — the breach — that engages the legislative consent. The associated penalty for that offence, on summary conviction, is a term not exceeding six months or a fine not exceeding the statutory maximum. The associated penalty on conviction on indictment is imprisonment for a term not exceeding five years, or a fine, or both.

The final measure, as the Committee is aware, falls to the Department for the Economy and relates to validation of fees charged in relation to qualifications. I understand that the fees have been operational for some time, but it recently came to light that there was a lack of statutory basis for those fees. Committee members are aware that the memorandum said that the Economy Committee had been provided with a written briefing. Due to a timing issue, that did not happen in time, but that paper has now been given to the Committee, and it received an oral briefing on the matter yesterday.

By way of information, there are two further measures in the Bill that fall into the reserved or excepted space that will be of interest to the Committee. They are amendments to the serious crime prevention order regime and the introduction of serious crime prevention orders. The amendments will extend to England and Wales in all cases; in Northern Ireland, however, the changes will relate only to terrorism cases, which are not a transferred matter and so do not engage the legislative consent process.

I want to mention one further measure. Clause 19, under the heading:

is, at present, applicable to immigration cases and is therefore not a devolved issue. There is, however, a regulation-making power that could extend that measure to appropriate persons, which could, in theory, include the PSNI at some point. Again, that would be in relation to immigration cases. Colleagues are working with the Home Office and the Departmental Solicitor's Office on that to understand whether the legislation should include a consulting clause so that, if it did refer to the PSNI, it would engage the legislative consent process. At the moment, the discussions do not indicate that that would be necessary, but they are finalising that. If anything were to change and the legislative consent process were to be invoked, we would come back to the Committee on that point. It cannot be added to the LCM that we are bringing forward. It would be subject to something else. We do not anticipate that to be the case, but I wanted to make you aware of that.

I will move on to the projected timescales for laying and debating the motion. Subject to no issues arising from the Committee's report and to the Minister's agreement, we hope that the motion can be laid mid-June and that the debate can happen, hopefully, before summer recess. That is probably everything that I have to say for now. I am happy to take any questions that you might have.

The Chairperson (Ms Bunting): Thank you. Does anybody have anything that they want to ask?

Miss Hargey: Thanks very much for the update. I would be keen for us to be kept up to date on the last point that you raised about the additional regulation-making power. That would be good, and I am keen to see it.

The other bit relates to the letter that the Department sent about the LCM aspects of the Bill and article 2, which is in our Committee pack. There was satisfaction from the British Government's human rights screening that the Bill does not contravene article 2 too much. In any local engagements with the Human Rights Commission here, was there anything different pertaining to clause 30 to 33? The letter says that the assessment in the UK Government's human rights memorandum was that it was proportionate with regard to article 2. Has the Human Rights Commission here taken a different view?

Ms Fiona Scullion (Department of Justice): That is my clause. I am not sure whether you have had sight of the commission's advice, but it provided an assessment of clauses 30 to 33. It recommended that we seek an expanded human rights memorandum from the Home Office. We did that, and the Home Office explored that. It came back to say that it had conducted its own article 2 analysis and was content that there are no issues or a reduction in rights in relation to article 2. I shared that feedback from the Home Office with the commission, and it has nothing further to add at this stage. However, it will soon be publishing advice on the Bill as a whole. That is due imminently.

Miss Hargey: Can that also be flagged with us, then, if the commission raises anything that pertains to this issue? Are there any Windsor framework considerations around the issues that it has raised?

Ms Scullion: No. It was only that, while the commission acknowledged the human rights memorandum that was published, it wanted an expanded human rights memorandum to say that the article 2 rights had been taken into consideration in drafting the clauses. The Home Office was content that it had carried out its own human rights assessment and article 2 analysis and that there were no issues or diminution of rights.

The Chairperson (Ms Bunting): Members, before we get into some detail, may I backtrack for a wee second on the generalities here? Essentially, Debbie, in the first letter that was laid, there was an indication that you wanted to further consult partners, including the Committee, the Executive, the Human Rights Commission and so on.

Ms Corry: Yes.

The Chairperson (Ms Bunting): You are saying that there was an administrative error, and so the actual thing was laid. That started the clock the next day, which has us all in a bit of a sweat. That is fine. We are where we are. However, from the papers that we have, it seems that you are due to receive a report from the Human Rights Commission in a few weeks. Is that right? You have not received the full report? You have had the initial assessment —

Ms Corry: That is right.

The Chairperson (Ms Bunting): — but you have not had its full report on the Bill yet. Is that right?

Ms Corry: The full report is what it will publish as part of the overall Bill process. It generally reports in all scrutiny cases.

The Chairperson (Ms Bunting): Just so that we are clear on the background, when you indicated that you wanted, not a massive amount of time, but additional time to consult other people, what were you envisaging? Was it the intention to lay this prior to the receipt of the Human Rights Commission's full report?

Ms Corry: Normally, a memorandum would not be laid until the point of receiving consent. However, given that the initial correspondence had gone to the First Minister and the deputy First Minister and not to the Home Office, we felt that it was important to make sure that everyone was aware that the Bill had been introduced in Westminster, that the Department did have an interest, and that there were measures in it for which we would be considering consent. That was why we reached out to colleagues in TEO to find out what the process would be, and the advice that we got was to lay the general memorandum at that point. The timing was unfortunate. We had written to the Executive previously about the Bill, and we wrote to the Committee on 23 April. Since then, we have been working with operational partners on whether we needed to take account of other measures relating to serious crime prevention orders etc. There were a few issues that we wanted to talk through with them.

During that time, we also engaged with the Northern Ireland Human Rights Commission as soon as the Bill was published, and it provided us with our initial report. We have worked through the commission's comments and looked at the UK Government memorandum alongside those comments. We have kept in touch with the commission, and we believe that its report, which would be standard in relation to any Bill introduced by the UK Government, will be published shortly. In addition, where there were issues, I think that Fiona has been engaging separately on those. On our side, we had been looking at the comments that came back about the articles for use in serious crime and working through those with the Home Office to make sure that any comments that it raised had been considered in a Northern Ireland context, so very much considering the advice that had been provided and working through that.

The Chairperson (Ms Bunting): You indicated that you needed a bit of time to consult further. Did you get it?

Ms Corry: Yes.

The Chairperson (Ms Bunting): What happens now? Are you going to get all that you need now that the clock has started?

Ms Corry: Yes. We are now at the point where we have considered the points that have been raised. We have worked through them and are content to move forward.

The Chairperson (Ms Bunting): That is fine. I wanted to check that. That is why I wanted to step back before we got into specific issues with specific clauses.

Do any members have anything that they want to flag?

Miss Hargey: I want to go back to paragraph 19 of the letter dated 22 May. It reiterates what you said about the British Government's human rights memorandum stating that they were content that it was proportionate. However, it also says:

Will the Department get sight of that, and will those elements of the regulations come back to the Assembly regarding any future regulations? Also, they are going to be screened for human rights and compatibility with article 2, so I would like a wee bit of clarity on that, please.

Ms Scullion: My understanding is that it is the Secretary of State for Transport who has the power to make regulations. The Department of Justice will be consulted but, as far as I am aware, there will not be local scrutiny. They will be subject to scrutiny in Parliament, but not local scrutiny. The regulations will specify the exact purposes relating to policing for which the Secretary of State may supply trailer registration data and define the specific policing purposes for which it can be disclosed. We certainly expect to be consulted, and, obviously, then to consult the Human Rights Commission.

Miss Hargey: You will do that locally? That is what I am trying to clarify.

Ms Scullion: Yes.

Miss Hargey: OK. I put on the record that it is probably the broader piece of this Bill, and it is going to be the same with the next one in terms of reserved powers. I have concerns about the draconian nature of part of this legislation, and I highlight the fact that the Assembly has no say in those elements. I want that put on the record and noted.

Ms Ferguson: I have just one question, which is on your paper of 23 April. The Minister indicated that she would not extend to here some of the provisions of the Bill on serious crime prevention orders and interim serious crime prevention orders, because the Department wanted to continue to work with partners and take time to review it etc. What is the impact of that? Will it leave a gap? What are the necessary steps once you have collaborated and made the decision to introduce the provisions at a later date? How would that happen?

Ms Corry: The amendments to serious crime prevention orders were included in the former Criminal Justice Bill, so there had been some policy work and engagement. However, the interim serious crime prevention order introduced in this Bill is totally new, and that has moved at pace, so that was one of the reasons why we wanted to take time to scope it and make sure that there would be no issue with its introduction in Northern Ireland. We reached out to law enforcement colleagues, whose view was that the number of relevant cases would be very low. They did not envisage a significant gap if the order were not to be put in place in Northern Ireland. We would like to take time to review the existing regime, because some colleagues have told us that there is sometimes an inconsistency in approach to enforcement of orders. We would like to look at the existing regime to see whether it is completely fit for purpose or we need to amend it slightly. We think that there are good policy intentions in the Bill, but we would like to implement them a wee bit more slowly to make sure that we get them right for Northern Ireland. Subject to capacity in the branch, we would like to take forward a piece of scoping work to look at exactly what the position is and how the changes are going to work in England and Wales, take learning from there and probably then introduce legislation in the Assembly that would be subject to scrutiny.

The Chairperson (Ms Bunting): How do you intend to do that, Debbie?

Ms Corry: It would have to be by local legislation in the next mandate, because there would not be a vehicle —.

The Chairperson (Ms Bunting): Are you looking at primary legislation or at regs?

Ms Corry: Primary legislation.

The Chairperson (Ms Bunting): OK. Does anybody have anything further? No?

I am not sure that I have fully got my head around the business of SCPOs and interim SCPOs. I understand that the interim order only applies here. Essentially, you are looking at the potential for them to be brought in — this just relates to terrorism, but you are looking at the potential for them to be brought in more generally.

Ms Corry: There are serious crime prevention orders in Northern Ireland. The changes that are being introduced in England and Wales will amend their system, and we could have asked for them to be extended to Northern Ireland. However, we need to look at them in a Northern Ireland context to make sure that they are fit for purpose. We want to carry out policy development and scoping work to make sure that whatever we put in place and whatever amendments we introduce very much reflect the position here. We will work with our criminal justice partners and the courts system here to make sure that they are a really good fit.

The Chairperson (Ms Bunting): OK. What happens if somebody comes here and is in breach?

Ms Corry: Of an interim serious crime prevention order?

The Chairperson (Ms Bunting): Yes.

Ms Corry: That is what the second measure that we are seeking consent for is about. If somebody in England or Wales is subject to an interim order and they come to Northern Ireland and breach that, it will still be an offence. That is what the legislative consent motion would cover — the actual offence of a breach, as such.

The Chairperson (Ms Bunting): OK. If they have just a normal SCPO and they are in breach here, we already have them, so it is all covered already?

Ms Corry: Yes, that is already in legislation.

The Chairperson (Ms Bunting): Right. OK, that is great.

Ms Corry: The position that we are taking is very similar to that in Scotland. They have adopted the same position as us, so it will not be extended there either at this time.

The Chairperson (Ms Bunting): OK. Anyone have anything further? No? There you are. It was not as bad as you maybe thought it might have been. Thank you very much. I appreciate that some of you are coming back to the table for the next item, but you may want to take a different seat for a moment or two while we do our deliberations, after which we will call you back. Thank you very much.