This document relates to the Abusive Behaviour and Sexual Harm () Bill as amended at Stage 2 (SP Bill 81A)

ABUSIVE BEHAVIOUR AND SEXUAL HARM (SCOTLAND) BILL

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SUPPLEMENTARY DELEGATED POWERS MEMORANDUM

PURPOSE

1. This Memorandum has been prepared by the to assist the Delegated Powers and Law Reform Committee (“the DPLRC”) in its consideration of the Abusive Behaviour and Sexual Harm (Scotland) Bill (“the Bill”). This Memorandum describes provisions conferring powers to make subordinate legislation introduced to the Bill at Stage 2. The Memorandum supplements the Delegated Powers Memorandum (“the DPM”) on the Bill as introduced.

Section 10(6) – Making of order on dealing with person for offence

Power conferred on: the Power exercisable by: act of adjournal Parliamentary procedure: laid only

Provision 2. Section 10 provides the court in criminal proceedings with powers to make a sexual harm prevention order when the court is passing sentence or otherwise disposing of the case. Section 10(5) provides that a hearing must be held if either the subject of the order, and the prosecutor give notice that they wish for a hearing to take place.

3. Section 10(6) provides that the time limit within which this notice for a hearing must be given is no later than rules of court may provide.

Reason for taking power 4. Section 10 orders may be granted in criminal proceedings when the court is passing sentence or otherwise disposing of the case with “rules of court” defined in the Interpretation and Legislative Reform (Scotland) Act 2010 as including acts of adjournal. Accordingly, the power in section 10(6) is to be used to make an act of adjournal to set a time limit for the service of a notice under that section.

5. The time period within which the person against whom the order would be made should be required to serve such a notice is essentially an administrative and procedural matter for the court and as such is not considered appropriate to be included in primary legislation.

SP Bill 81A – DPM Session 4 (2016) This document relates to the Abusive Behaviour and Sexual Harm (Scotland) Bill as amended at Stage 2 (SP Bill 81A)

Choice of procedure 6. The power is subject only to the default laying requirement under section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010. Acts of adjournal are not normally subject to Parliamentary procedure. In this instance the determination of time limits will be in order to ensure the smooth running of the courts and relate to court practice and procedure. As such this is a matter for the courts to regulate in accordance with the principle of the separation of powers.

Section 11(2B) – Making of order against qualifying offender on application to

Power conferred on: the Power exercisable by: Parliamentary procedure: laid only

Provision 7. Section 11 provides the court with powers to make a sexual harm prevention order following an application by the Chief Constable. Section 11(2A) provides that a hearing must be held if the subject of the order gives notice that they wish for a hearing to take place.

8. Section 11(2B) provides that the time limit within which this notice for a hearing must be given is no later than rules of court may provide.

Reason for taking power 9. Section 11 applications are civil proceedings with “rules of court” defined in the Interpretation and Legislative Reform (Scotland) Act 2010 as including acts of sederunt. Accordingly, the power in section 11(2B) is to be used to make an act of sederunt to set a time limit for the service of a notice under that section.

10. The time period within which the respondent should be required to serve such a notice is essentially an administrative and procedural matter for the court and as such is not considered appropriate to be included in primary legislation.

Choice of procedure 11. The power is subject only to the default laying requirement under section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010. Acts of sederunt are not normally subject to Parliamentary procedure. In this instance the determination of time limits will be in order to ensure the smooth running of the courts and relate to court practice and procedure. As such this is a matter for the courts to regulate in accordance with the principle of the separation of powers.

SP Bill 81A – DPM Session 4 (2016) This document relates to the Abusive Behaviour and Sexual Harm (Scotland) Bill as amended at Stage 2 (SP Bill 81A)

Section 19(8) – Variation, renewal and discharge

Power conferred on: the Court of Session/the High Court of Justiciary Power exercisable by: act of sederunt/act of adjournal Parliamentary procedure: laid only

Provision 12. Section 19 provides the court with powers to vary, renew or discharge a sexual harm prevention order following an application either by the person against whom the order has effect, the Chief Constable and, where the order has been made under section 10, the prosecutor. Section 19(7) provides that a hearing must be held if either the subject of the order, the Chief Constable or, for orders imposed under section 10, the prosecutor, gives notice that they wish for a hearing to take place.

13. Section 19(8) provides that the time limit within which this notice for a hearing must be given is no later than rules of court may provide.

Reason for taking power 14. Section 19 applications may relate to orders granted in criminal proceedings (section 10) or in civil proceedings (section 11). The Interpretation and Legislative Reform (Scotland) Act 2010 defines “rules of court” to include both acts of sederunt and acts of adjournal. It will be for the courts to determine which rules of court should be made, in which circumstances, to set a time limit for the service of a notice under section 19(8).

15. The time period within which the respondent should be required to serve such a notice is essentially an administrative and procedural matter for the courts and as such is not considered appropriate to be included in primary legislation.

Choice of procedure 16. The power is subject only to the default laying requirement under section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010. Acts of sederunt and acts of adjournal are not normally subject to Parliamentary procedure. In this instance the determination of time limits will be in order to ensure the smooth running of the courts and relate to court practice and procedure. As such this is a matter for the courts to regulate in accordance with the principle of the separation of powers.

SP Bill 81A – DPM Session 4 (2016) This document relates to the Abusive Behaviour and Sexual Harm (Scotland) Bill as amended at Stage 2 (SP Bill 81A)

Section 26(5) – Making of order

Power conferred on: the Court of Session Power exercisable by: act of sederunt Parliamentary procedure: laid only

Provision 17. Section 26 provides the court with powers to make a sexual risk order following an application by the Chief Constable. Section 26(4) provides that a hearing must be held if the subject of the order gives notice that they wish for a hearing to take place.

18. Section 26(5) provides that the time limit within which this notice for a hearing must be given is no later than rules of court may provide.

Reason for taking power 19. Section 26 applications are civil proceedings with “rules of court” defined in the Interpretation and Legislative Reform (Scotland) Act 2010 as including acts of sederunt. Accordingly, the power in section 26(5) is to be used to make an act of sederunt to set a time limit for the service of a notice under that section.

20. The time period within which the respondent should be required to serve such a notice is essentially an administrative and procedural matter for the court and as such is not considered appropriate to be included in primary legislation.

Choice of procedure 21. The power is subject only to the default laying requirement under section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010. Acts of sederunt are not normally subject to Parliamentary procedure. In this instance the determination of time limits will be in order to ensure the smooth running of the courts and relate to court practice and procedure. As such this is a matter for the courts to regulate in accordance with the principle of the separation of powers.

Section 29(7) – Variation, renewal and discharge

Power conferred on: the Court of Session Power exercisable by: act of sederunt Parliamentary procedure: laid only

Provision 22. Section 29 provides the court with powers to vary, renew or discharge a sexual risk order following an application by the Chief Constable. Section 29(6) provides that a hearing must be held if either the subject of the order, or the Chief Constable gives notice that they wish for a hearing to take place.

SP Bill 81A – DPM Session 4 (2016) This document relates to the Abusive Behaviour and Sexual Harm (Scotland) Bill as amended at Stage 2 (SP Bill 81A)

23. Section 29(7) provides that the time limit within which this notice for a hearing must be given is no later than rules of court may provide.

Reason for taking power 24. Section 29 applications are civil proceedings with “rules of court” defined in the Interpretation and Legislative Reform (Scotland) Act 2010 as including acts of sederunt. Accordingly, the power in section 29(7) is to be used to make an act of sederunt to set a time limit for the service of a notice under that section.

25. The time period within which the respondent should be required to serve such a notice is essentially an administrative and procedural matter for the court and as such is not considered appropriate to be included in primary legislation.

Choice of procedure 26. The power is subject only to the default laying requirement under section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010. Acts of sederunt are not normally subject to Parliamentary procedure. In this instance the determination of time limits will be in order to ensure the smooth running of the courts and relate to court practice and procedure. As such this is a matter for the courts to regulate in accordance with the principle of the separation of powers.

SP Bill 81A – DPM Session 4 (2016) This document relates to the Abusive Behaviour and Sexual Harm (Scotland) Bill as amended at Stage 2 (SP Bill 81A)

ABUSIVE BEHAVIOUR AND SEXUAL HARM (SCOTLAND) BILL

SUPPLEMENTARY DELEGATED POWERS MEMORANDUM

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SP Bill 81A – DPM Session 4 (2016)