Public policy highlights June 2020

We provided a briefing at stage 3 of the Bill, affirming our support for the development of a simplified regime for disclosure in Scotland, balancing an individual’s right to privacy with protection of the public interest. We noted that the current disclosure regime is complex and can be difficult to navigate. We also appreciate the reasons for changing the way in which offences committed before the age of 18 are treated. However, the Bill proposes significant changes to the disclosure system which, if enacted, may restrict the information which will be disclosed to us through future disclosure certificates. Allowing electronic processing of disclosure applications, subject to appropriate safeguards around the security of sensitive personal information, will make the process quicker and more accessible.

Overall, we support the simplification of the disclosure process, which we believe will bring greater certainty for individuals and organisations engaging with the disclosure process. We stated our belief that allowing electronic processes for the disclosure system will make the process quicker and more effective. We noted that the introduction of principles at stage 2 of the Bill will also provide a greater degree of certainty around the decision-making involved in the process, though we remain concerned that the information provided as a result of this legislation may be more limited than available previously to discharge our functions. However, we look to engage with Scottish Government and Disclosure Scotland to ensure that code and guidance available for this process are able to assist in effective safeguarding of the public.

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We produced a briefing ahead of the report stage in the House of Lords. We noted that fishing opportunities are a particularly important issue for Scotland and therefore strong collaboration between Defra and the devolved administrations is of considerable importance. We welcomed the recognition given by Defra of the importance of engaging with the devolved administrations and legislatures and the collaborative approach taken by the Bill.

We stated that it is of crucial importance that Scotland’s fishing interests are protected, particularly in recognising that positive changes to the UK fisheries position is likely to adversely impact the European fishing fleet and/or impact on trade negotiations, including tariffs.

We proposed that following the UK’s exit from the EU, regulation of fishing in Scotland should fall within the ambit of the Marine (Scotland) Act 2010 and the Aquaculture and Fisheries (Scotland) Acts 2007 and 2013. Leaving the CFP opens up the opportunity for fisheries to be looked at in detail alongside matters such as conservation, fossil fuel and renewable energy developments, aquaculture, and navigation. This will help to ensure that the system of marine planning envisaged under the Act is comprehensive, rather than having components of use of the sea treated separately.

We noted that other than in relation to a discard charging scheme, the Bill does not provide for any appeal or dispute resolution processes, for example in relation to the granting of licences. We consider that such provision should be made, even on an enabling basis, to bring clarity to the powers of the Secretary of State and devolved administrations in this regard.

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We prepared a briefing ahead of stage 3 of the Bill. We welcomed the Bill’s addressing of concerns around the need for an increase in penalties which were no longer commensurate in recognising the seriousness of certain offending behaviour relating to animal health and welfare and wildlife. The Bill also seeks to increase the range of Fixed Penalty Notices (FPNs) to be issued in respect of a range of animal and wildlife crimes and offences. However, we noted that while the Bill widens the scope of options for enforcement, increasing sentencing powers will not on their own ensure that the Bill’s measures are effective in combatting the commission of such offences. We stressed that “sentencing for wildlife offences [is] quite different from other criminal offences with regard to the assessment of culpability harm and public policy aspects” and the Bill therefore should consider raising public awareness of the range and nature of the offences and the preventative effect of the increase in sentencing.

On vicarious liability, we noted that this tends not to form part of criminal law as a person is normally only liable for their actions and not the actions of others. If vicarious liability is to apply here, where an employee commits an offence in the course of their employment, the employer could be held criminally liable for the actions of their employee, unless a due diligence defence applies. That would create new offences which was understood not to form part of this Bill. What is important again seems to be awareness raising and discussion among those affected who would wish to introduce such an offence. If there are examples of circumstances and cases where COPFS are unable to prosecute, that would show where there was any gap and that the law requires to be extended. To criminalize vicarious responsibility would effectively extend the law.

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