Overview
The Bill aims to:
- expand the scope for the electronic monitoring (EM) of offenders
- reduce disclosure times for past criminal convictions
- allow longer prison sentences to become 'spent' – and so not disclosed as part of basic disclosure checks
- make changes to the Parole Board for Scotland, including removing the need for a High Court judge and a psychiatrist to be on the board
Electronic monitoring (EM)
At present, electronic monitoring is used in Scotland to restrict the movement of people with convictions from certain places. This Bill would allow for GPS monitoring to be used to prevent people with convictions from going to wider areas. It would also allow for monitoring of alcohol and drug use.
It would also allow electronic monitoring in new situations, for example as part of the community sentence type ‘Community Payback Orders’.
Disclosure of convictions
Reducing the time periods for disclosure of convictions can help people back into employment more easily. Employers will still be able to be told about convictions that are recent and relevant.
Currently in Scotland, prison sentences of more than 2 and a half years do not become ‘spent’. This Bill would mean that prison sentences of up to 4 years could become spent.
You can find out more in the Scottish Government document that explains the Bill.
Why the Bill was created
The Scottish Government thinks this Bill would give the right balance between protecting the public and allowing people to move on with their lives after offending
Benefits of electronic monitoring (EM)
Electronic monitoring (EM) for this purpose has been used for a number of years, because it:
- helps people back into work and away from reoffending
- is cheaper than keeping someone in prison
- helps protect victims
Benefits of reduced disclosure times
Although the number of people convicted is falling, the average length of a prison sentence has increased over the last decade.
Longer prison sentences mean:
- more people in prisons
- people have to disclose their convictions for a longer period after their release
Employment is one of the biggest ways to stop people reoffending. But disclosing convictions can affect prospects of getting back into work, education or volunteering.
You can find out more in the Scottish Government document that explains the Bill.
The Management of Offenders (Scotland) Bill became an Act on 30 July 2019
Becomes an Act
The Management of Offenders (Scotland) Bill passed by a vote of 82 votes for, 26 against and 0 abstentions. It became an Act on 30 July 2019.
Introduced
The Scottish Government sends the Bill and related documents to the Parliament.
Related information from the Scottish Government on the Bill
Why the Bill is being proposed (Policy Memorandum)
Explanation of the Bill (Explanatory Notes)
How much the Bill is likely to cost (Financial Memorandum)
Opinions on whether the Parliament has the power to make the law (Statements on Legislative Competence)
Information on the powers the Bill gives the Scottish Government and others (Delegated Powers Memorandum)
Stage 1 - General principles
Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.
Committees involved in this Bill
Lead committee: Justice Committee
Who examined the Bill
Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.
It looks at everything to do with the Bill.
Other committees may look at certain parts of the Bill if it covers subjects they deal with.
Who spoke to the lead committee about the Bill
First meeting transcript
The Convener
Agenda item 4 is an evidence-taking session with the Scottish Government bill team for the Management of Offenders (Scotland) Bill. I refer members to paper 3, which is a note by the clerk; paper 4, which is the Scottish Parliament information centre briefing on the bill; and paper 5, which is a private paper.
I welcome from the Scottish Government Neil Devlin, who is the bill team leader from the community justice division; Nigel Graham, who is a policy adviser from the criminal justice division; and Craig McGuffie, who is a principal legal officer in the directorate of legal services. Neil Devlin will give us an overview of the bill.
Neil Devlin (Scottish Government)
Thank you for the opportunity to provide you with evidence. The Management of Offenders (Scotland) Bill introduces a number of reforms that are designed to deliver on the Scottish Government’s commitment to continue to reduce reoffending, thereby ensuring that Scotland’s justice retains its focus on prevention and rehabilitation, while enhancing support for victims. The substantive provisions of the bill are contained in three parts: part 1 expands and streamlines the uses of electronic monitoring; part 2 modernises and improves the provision of the Rehabilitation of Offenders Act 1974; and part 3 delivers some of the aims of the parole reform programme to clarify the role of the Parole Board for Scotland.
The expansion of electronic monitoring supports the broader community justice policies of preventing and reducing reoffending by increasing the options that are available to manage and monitor individuals in the community, and to further protect public safety. The bill’s EM provisions are designed to provide an overarching set of principles for the imposition of electronic monitoring. The bill provides clarity as to when and how electronic monitoring can be imposed by the courts through criminal proceedings, or by the Scottish ministers in relation to release on license from detention or imprisonment. It also creates a standard set of obligations that clearly describe what is required of an individual who is subject to monitoring.
The bill also empowers ministers to make regulations to specify the types of devices that can be used for monitoring. The introduction of new technologies, such as global positioning system technology, may present opportunities to improve the effectiveness of electronic monitoring through, for example, use of exclusion zones, which could offer victims significant reassurance and respite.
The Rehabilitation of Offenders Act 1974 reforms will reduce the length of time for which most people with convictions must disclose their offending history, bring more people within the scope of the protections not to disclose, and make the regime more transparent and easier to understand. The provisions in part 2 are designed to achieve a more appropriate balance between, on the one hand, the rights of people not to disclose their previous offending and thus to move on with their lives and, on the other hand, the need to ensure that the rights of the public to be protected can be effectively maintained. Those progressive reforms will help to unlock untapped potential in Scotland’s people by helping them to move on more quickly from their offending behaviour in order to assist the economy and improve their life chances, and will help to reduce reoffending rates.
The Parole Board for Scotland reforms will deliver on the Scottish Government’s commitment to
“improve the effective rehabilitation and reintegration of people who have committed offences and complete the implementation of the parole reform project to modernise and improve support for the vital work of the Parole Board.”
The measures in part 3 aim to simplify and modernise processes and support consistency of approach in parole matters. The provisions amend the tenure of Parole Board for Scotland members to bring it into line with other tribunals, reinforce the independence of the board, and provide for the administrative and accountability arrangements of the board to be set out in secondary legislation.
The Convener
The 2016 report “Electronic Monitoring in Scotland Working Group Report” included a range of recommendations, a number of which are in the bill, but what is the Scottish Government doing, with stakeholders, to implement the recommendations that are not in the bill?
Neil Devlin
As you say, a number of the expert working group’s recommendations are not in the bill. In some cases, provision may be made for them in future legislation. The intention is that the bill will provide an overarching framework that lays the groundwork for future use of electronic monitoring. One of the provisions in the bill is to allow Scottish ministers to make regulations that will extend the ways in which electronic monitoring is used currently or as laid down in the bill, which would allow us in the future to introduce alternative means for which no provision is currently made. That would allow measures that were suggested by the working group but are not in the bill to be brought forward at a future time.
There are also a number of recommendations that do not require legislation to bring them into effect; that could be done in collaboration with the Scottish Prison Service or with local authorities. That work is being done by the Government, but it falls outwith the provisions of the bill.
The Convener
Are there recommendations that the Government does not intend to take forward?
Neil Devlin
We fully support the basic ethos of the report’s recommendations—that electronic monitoring could be used more creatively and more effectively. It is fair to say that the report expresses disappointment that the way in which electronic monitoring is currently used is purely restricted to radio frequency monitoring of a curfew. It suggests that there are better ways in which electronic monitoring could be embedded in the support that is provided to individuals, and that it does not work as a stand-alone service but should be more integrated. That is something that we have tried to carry forward into the underlying principles of the bill. I do not think that there are any specific recommendations that I could point to and say, “We definitely don’t think that’s worth taking forward.” Those that are in the bill are the ones that we think could have the most immediate impacts.
John Finnie
The working group report highlighted concerns about geographical variations in use of electronic monitoring. How have those been addressed?
Neil Devlin
To an extent, it is beyond the capabilities of the bill to address that question. I know that on-going concerns about differences in geographical provision have been raised in a number of the responses to the committee’s call for evidence. The current RF technology could be used anywhere, by and large, and GPS technology is improving all the time, so it, too, could be used around the country. With the bill, we are trying to create a system that could be used anywhere and that has equality of impact, but I am aware that there are other measures that need to be taken forward to ensure that that happens.
John Finnie
Do you consider the bill to be—to use a much-used term—future proofed for technology?
Neil Devlin
The bill’s aim is to ensure that the ways in which technology can be deployed are in no way restricted. We fully intend to continue using the RF technology that is currently available, because it has proved to be useful and has a definite place. The enabling powers to allow the Scottish ministers to specify new devices were envisaged such that if technology comes along that is better or more useful, we can use it and not be restricted to the technology that is available in 2018.
Liam McArthur
I will follow up on John Finnie’s line of questioning. As well as future proofing, the expression “island proofing” has entered the political lexicon, of late. In remoter parts of the country, there have been technological issues with radio frequency tagging. Some sheriffs or judges have also been reluctant to allow release, because of concern that some islands have no police presence, which means that the response time for incidents is likely to be longer.
In developing the bill, have you considered issues that are more pronounced in island settings, although they do not arise just there? Those issues are partly about technology and partly about public safety—about whether GPS can operate without giving rise to unacceptable risks.
Neil Devlin
Public protection is at the heart of the bill. The idea is that expanding electronic monitoring will enable a greater range of sentencing disposals while ensuring that public protection is considered.
The committee may be aware that the Scottish Government recently released a prior information notice about our intention to issue a new contract for the technology. The contract with the current service provider runs until the end of March 2020, so we will need a new contract to take us forward. In the new contract, we will look for information that relates to the technology’s ability to work in remoter areas, to ensure that it is fit for purpose and that it addresses the particular difficulties of island and remote communities.
Liam McArthur
It appears from the financial memorandum that the expectation in the initial stages is that use of electronic monitoring will not expand greatly as a result of the shift from RF to GPS monitoring. What levels of use are expected? What timeframes are envisaged in the first three to five years of the new provisions being brought into force?
Neil Devlin
I have to put my hands up and say that we do not know. One of our difficulties when putting together the financial memorandum was that the increase or otherwise will be determined by how much sentencers and other decision makers use the new provisions.
It is fair to say that we expect a shift, in the short term, from the current position, in which monitoring a person who is subject to a community payback order requires a restriction of liberty order at the same time. It is intended that the bill will provide sentence makers with the ability to monitor somebody who is on a CPO without the need for a concurrent RLO. The information from our contract provider is that about 1,000 cases a year are in that position. We expect the shift to increased use of CPO monitoring to be offset by a decrease in the use of stand-alone RLOs.
11:45The anticipated costs in the financial memorandum are based roughly on a 10 per cent increase across the different forms of monitoring that can be used. We think that that is a realistic first estimate of the increase, but I say again that it will depend on the amount of use of the disposal by sentencers and other decision makers. We are also aware that new technologies will require a lead-in time, following the bill’s passage, which means that we are hampered in estimating uptake until things actually start to happen.
Liam McArthur
It is envisaged that electronic monitoring will not operate in isolation; in many instances, it will run alongside efforts to assist and support those to whom it is applied. Can you provide clarity on the estimated costs of such support measures?
Neil Devlin
That question is slightly difficult to answer. The bill is intended to ensure that electronic monitoring, rather than being seen as a stand-alone service that is provided outwith the regular criminal justice and social work system, sits wholly within an ethos of person-centred and tailored disposals. That is happening now, as individuals who are subject to CPOs already receive support from local authorities. The idea is that electronic monitoring should be another tool that enables people to work with those individuals to help them to rehabilitate.
The bulk of the costs that are associated with electronic monitoring will be covered by the Scottish Government’s contract with the service provider. We recognise that there will be an increase in the amount of work for local authorities, but the work is, to some extent, captured in work that they already do.
Liam McArthur
Is it expected that the application of GPS monitoring, whether through local authorities or under a contract with third sector parties, could allow savings to be made? Is that built into the assumptions that have been made?
Neil Devlin
That is not built into the figures that the financial memorandum provides. It is intended that the extension of electronic monitoring will allow savings to be made throughout the justice system, but those savings will not necessarily be realised in the same places in which the outlay is made.
Liam McArthur
Is that not slightly problematic? The organisations that make savings would like very much to have such money reinvested in them in order to allow them to do other things that will help to make the system a success overall. However, if those savings are clawed back and are instead used to benefit other parts of the system, we will end up with an overall set-up that does not necessarily deliver the outcomes that we seek.
Neil Devlin
That is a difficulty. There will always be tension between different parts of the justice system, given, for example, that savings in expenditure by the Scottish Courts and Tribunals Service may be experienced as savings for the Scottish Prison Service further down the line. As the cabinet secretary mentioned in his evidence earlier today, the idea behind block funding for the criminal justice service is that part of it can be made available to local authorities, which have the discretion to decide how best to spend that money. Savings that result from use of electronic monitoring could be moved around within the system in order to allow local authorities to spend money in areas in which they may not always have been active. We will need to look at that, further down the line.
Liam McArthur
We might end up with the perverse situation in which electronic monitoring disposals being used frequently in one local authority would free up savings that would be deployed in other parts of the country. There might be a legitimate call on that funding, but at the same time organisations that operate in the local authority area that is using electronic monitoring extensively may say, “We’re under pressure, too, so that funding could be deployed better here.” I presume that there is not really a way, through the bill, to guard against such a situation.
Neil Devlin
My colleagues in community justice who deal with finances would be better placed to explain how that might be guarded against, but I do not think that it would be possible to put something in the bill to guard against such situations.
Mairi Gougeon
We have touched on some of the new technologies that might emerge and the powers for ministers to ensure that we can keep pace with those changes. I have a couple of questions, first of all about transdermal alcohol monitoring. I am curious to find out what conditions the courts would set at the moment in which that would be required. What does the technology involve and how far off is it from being implemented?
Neil Devlin
I will answer your second question first, which is a slightly odd way to take things.
A number of different alcohol monitoring systems are available. One of those systems is transdermal alcohol monitoring, which is an ankle bracelet that monitors the level of alcohol in someone’s sweat. Much like a current tag, it is designed not to be removable and it monitors 24/7. There are also a number of available systems that are, in essence, breathalyser kits that monitor alcohol at certain points in time and can be fixed in a home or carried around. They are very much like the breathalysers that police use. The data from them can be sent to the monitoring service.
On how far off the technology is, alcohol monitoring is probably further off than GPS. We could quickly introduce the GPS products that we are aware of, which are tried and tested. More work needs to be done before we are able to say that we are definitely ready for alcohol monitoring to be used within the current legislative set-up. That is why we hope to provide the ability to run pilots, as the cabinet secretary said earlier. We definitely do not want to run before we can walk. The idea is that we have pilots that allow us to work out how such monitoring devices would best fit within the current legislative system and then, if those pilots were successful, to roll out those devices more widely. However, that will not happen as soon as the bill comes into force.
Mairi Gougeon
Can you answer the initial part of my question as well? It was on the conditions that require alcohol monitoring to take place.
Craig McGuffie (Scottish Government)
There is nothing specific in legislation just now about the court’s ability to impose a condition that an offender must not take alcohol. However, the power to make sexual offences prevention orders and their replacement—sexual harm prevention orders—includes a general power to impose conditions on an offender. In theory, one of those conditions could be that the offender must not take alcohol.
Such a condition is less likely to be imposed in that setting than in the custodial setting. If a prisoner is released early from prison, licence conditions regularly include the condition that the offender must not take alcohol, whether they are on temporary release or on parole. In those situations, it is more likely that there would be a restriction on a prisoner’s intake of alcohol.
If transdermal alcohol monitoring is introduced once the technology is ready and we take whatever legislative steps are necessary, the bill would allow us to specify devices that monitor transdermal alcohol and to add to the lists in the bill any other court disposals or forms of early release to which we can attach electronic monitoring.
Mairi Gougeon
You said that the technology might be a bit further off than GPS. What would be its main benefits over the radio frequency electronic monitoring that is used at the moment?
Neil Devlin
The current radio frequency technology is limited to showing whether a person is present in a particular place. Typically, a box is placed in the house of an individual who is subject to a curfew between 7 pm and 7 am. The individual wears a tag on their ankle that tells the monitoring system whether they are in the required area within the curfew times. If they are not, the system sends an alert.
The GPS monitoring system is more wide ranging. As well as specifying an area in which a person must stay for certain periods, it can deal with an area that a person cannot go into. In theory, that is possible under the current system, but it would involve having a box in the place where the person could not go. The difficulty of that is that, if a person could not go to more than one place, more than one box would be needed. GPS allows areas to be drawn on a map to show exclusion zones so that, if the tag is present in an exclusion zone, it triggers an alert.
Mairi Gougeon
The working group report recommended extending the use of monitoring to be an alternative to remand—the committee has been looking at remand in quite a lot of detail. The bill gives the Scottish ministers the power to expand the list that electronic monitoring covers, but the bill refers to things that are done in relation to “an offender”. Will that be clarified further? Someone who is on remand has not been convicted of a crime. Will the language be made clearer?
Craig McGuffie
We can look at that at stage 2. The difficulty in drafting the provisions relates to the term of art to describe a person. In the context of electronic monitoring, we already refer to a designated person, and some disposals refer to a supervising officer, who is from criminal justice social work.
I appreciate the problem, which we can consider at stage 2.
Rona Mackay
I would like to probe what was said about the disclosure of convictions. An analysis of responses to the Scottish Government’s 2015 consultation paper noted calls for more substantive reforms of disclosure. What was sought and to what extent are those views reflected in the bill?
Nigel Graham (Scottish Government)
When we had the engagement events and published the discussion paper, nobody had a particular view on what an appropriate disclosure period should be. In organisations such as Nacro, Unlock, Recruit With Conviction and Positive Prison? Positive Futures, the majority of people accept that the disclosure periods that are in the 1974 act are too long. However, what they should be is open to question.
The Scottish Government proposes a balanced approach. Some bodies wanted to go as far as the recommendation in the Home Office-led “Breaking the Circle” report of 2002 that the disclosure period for all custodial sentences up to but not including life imprisonment should be the length of the sentence plus two years. In relation to general disclosure—the bill has no impact on the higher-level disclosure system—one view is that there may be a point at which no disclosure should take place. Should someone disclose a fine before working in an office, a garage or a shop? If the balance is right for public protection, should the approach rely on standard disclosure, enhanced disclosure or, in relation to the regulated care of adults or children, the Protection of Vulnerable Groups (Scotland) Act 2007?
One view is that, under basic disclosure, there should be no disclosure at all. The insurance industry’s view is that far more should be disclosed under basic disclosure, because it assesses risk only on the basis of unspent convictions. A variety of other people sit somewhere in between.
When we had the engagement events, the initial view was, “Oh—that should be this length.” When we asked how the arrangements would affect someone or their brother, son, daughter, husband or wife, most people wanted to move to less disclosure, but the question is about what society can take, given that the disclosure periods under the 1974 act have never changed.
The Government’s approach is to get an appropriate balance of the views of those who want no disclosure, those who want less disclosure and those who want more disclosure. The Government has adopted that balanced approach in part 2 of the bill.
12:00Rona Mackay
Will you outline that approach? What are the Government’s proposals if you are trying to strike a balance?
Nigel Graham
The Government’s proposal is to reduce the disclosure periods. Currently, the disclosure period for a fine is five years, so the proposal is to reduce that to one year. The disclosure period for admonishment is, currently, five years and the proposal is to reduce that to zero. For an absolute discharge, the disclosure period is six months and the proposal is to reduce that to zero. The period for a children’s hearings disposal that, under a special provision, is classed as a conviction or sentence to provide protection is currently six months for a discharge and 12 months, or the length of the order, for a compulsory supervision order. Both of those will be zero.
We are also reducing the disclosure periods for custodial sentences while increasing the scope to 48 months and creating three sentence bands. There will be a sentence band of zero to 12 months, which will have a period of the length of sentence plus a two-year buffer period. A sentence of more than 12 months and up to 30 months will have a disclosure period of the length of sentence plus four years. The new sentence band—more than 30 months and up to 48 months—will have a disclosure period of the length of sentence plus six years. The reason for that six-year buffer period is that the Government’s proposal is also to maintain the current 10-year maximum disclosure period for a sentence that can have a finite period of disclosure.
Rona Mackay
Will that be widely accepted by stakeholders and the community?
Nigel Graham
The evidence that you have received so far shows that the majority are supportive of it. Some insurance companies have come back and said no. Police Scotland is supportive of it, as are Unlock, Nacro, Recruit With Conviction and, from what I have read, Positive Prison? Positive Futures. The feedback that we received from the consultation is supportive of it because we have based the approach on consultation, on letters that I have received over the past number of years from individuals and from MSPs and Scottish MPs on behalf of their constituents, and on the parliamentary questions that have been asked over the years.
We are taking a balanced approach. There will always be somebody who would want more or less disclosure. However, remember that we are dealing with the system of basic disclosure. It is not the system of high-level disclosure, in which there is a standard disclosure, an enhanced disclosure and the provisions under the Protection of Vulnerable Groups (Scotland) Act 2007.
Rona Mackay
Thank you. That is helpful.
Liam McArthur
The conclusions that were reached on the basis of that consultation seem to mirror relatively closely, with a few exceptions, the approach that has recently been taken in England and Wales. Was that a factor? Were the people to whom you spoke looking to whatever consultations happened there?
Nigel Graham
The view was that we should have a system that was at least equivalent to that in England and Wales because of the cross-border movement for employment—people moving and travelling and companies that might have employees who work in Scotland as well as employees who work in England and Wales. We considered the system there but we also have to consider the conditions in Scotland and the Scottish Government’s view on disclosure. The system of high-level disclosure in Scotland is more progressive than that in England and Wales.
As well as looking at conditions and considering current policy, we have tried to understand where each disposal fits on the spectrum of seriousness. Life sentences are at one end, compared with police warnings at the other. How do we fit all those disposals together meaningfully? There is no such thing as an optimum disclosure curve. We cannot put down a line and say that, if we have a disclosure at a certain point, it will reduce reoffending by a certain amount.
It is about looking at what is happening in England and Wales, looking at the feedback that has been received, listening to the conversations that we had at engagement events on the discussion paper and trying to come to an appropriate balance that reduces disclosure, allows people to move forward and still allows employers to have information at a particular point to make employment decisions for general disclosure purposes. The Government is trying to take such a balanced approach.
Liam McArthur
Your point about people who move back and forth across the border and businesses that want to have a degree of consistency throughout the country suggests that the Scottish ministers, officials and wider stakeholders would have wanted to feed into the process that was gone through in England and Wales. Was that the case?
Nigel Graham
That is certainly an aspect of how things have worked. The UK Government looked at the Home Office-led report, “Breaking the Circle”, which is about trying to match the custodial sentence length more closely with the disclosure period. That is why we have sentence bands plus a buffer period in order to match the disclosure period more appropriately.
We looked at the recommendations in “Breaking the Circle” that seemed appropriate. We also considered the evidence that we received following the publication of the consultation paper, and in the responses to our discussion paper and our engagement events. That information suggested that it would be better if the time periods were more aligned. Whether the outcome was perfect—or, indeed, whether we can ever get a perfect system—is open to question, but we have tried to strike a balance that feels appropriate and which considers all aspects. One could easily say, “We’ll just copy what they’ve done in England and Wales”, but it is better to investigate and listen to what people say, and to look at all the reports and the evidence.
We went right back to the Gardiner committee’s 1972 report “Living It Down: The Problem of Old Convictions”, which led to the Rehabilitation of Offenders Act 1974. We looked at the founding principles behind the 1974 act—for example, the principle that the disclosure period should be based on the sentence—and considered whether those principles are consistent with new research. The UK Government and the “Breaking the Circle” report said that disclosure should still be based on sentence. The evidence that we received from the consultation on our discussion paper suggested that, although the current system is imperfect, disclosure should still be based on sentence, because that is an easier way to consider it. In addition, the courts can, in determining a sentence, consider all the available information, which may cover culpability, the seriousness of the offence and the person’s previous convictions. In all those instances, we had to determine whether sentence should determine disclosure, and we looked at a lot of different factors in order to come to a conclusion. The Scottish Government’s conclusion was that that approach is still appropriate.
Maurice Corry
Good afternoon, panel. With regard to the armed forces, the bill does not propose any changes to disclosure periods for sentences that are imposed under the legislation.
Nigel Graham
That is right.
Maurice Corry
What is the reason for that?
Nigel Graham
That area is reserved.
Maurice Corry
Ah. Thank you—that answers my question.
The Convener
Do you have another question, Mr Corry?
Maurice Corry
One of the bill’s aims is to make the rules of disclosure easier to understand. To what extent will the changes that the bill sets out achieve that? Could more be done to simplify the system?
Nigel Graham
I am sure that the Government will be open to any proposals to improve that aspect. In order to increase accessibility, the bill removes redundant provisions. The key changes that stakeholders asked for concern sections 5 and 6 of the 1974 act. Section 5 sets out the disclosure periods, and section 6 sets out the rules that apply when someone gets more than one conviction. We have removed all the redundant provisions, and we have set out clearly and accessibly exactly what the disposal will be in each case. For example, if it is a fine, it will be on table A, which shows that the relevant period will be 12 months, or six months if the person was under 18. It should now be easy for anybody to go and have a look at section 5. They might say, “I got a CPO—what will be the length of the order?”, and they will see that the time period is 12 months. They can work their way through the information.
One of the provisions deals with the way in which section 1(1) is constructed in order to address what is called the sentence rule. At present, if someone gets a disposal such as a fine and, before the disclosure period ends, they receive an excluded sentence—currently, that is a sentence over 30 months—both will be disclosed forever. We did not think that that was right. We thought that excluded sentences should be outwith the rules in the 1974 act so that, if someone gets an excluded sentence, they know that they will always have to disclose it. Someone may, as a consequence of getting subsequent sentences later on, eventually get an excluded sentence. If a person gets a consecutive custodial sentence—if the sheriff turns round and says, “I’m going to sentence you to two years and three years to run consecutively”—the sentences are added together. Two plus three equals five, which is greater than 48 months, so it will therefore be an excluded sentence. There is still the possibility that the person will get a further excluded sentence, but that should not impact on the rules in the 1974 act.
We appreciate that section 6 of the 1974 act is probably one of the most difficult sections to work out. Because we are changing some definitions and changing the excluded sentence rules, we can change the language, so we are updating subsections (1), (2), (4), (5) and (6). That will make the rules easier to understand. We will also publish guidance on the Scottish Government’s website to explain how the rules will work more effectively.
Liam Kerr
You mentioned terminology. The policy memorandum notes that the rules on disclosure are not intended to suggest that a person who has unspent convictions is always unsuitable for employment, and the bill will change terminology in the hope of clarifying that for employers. Is anything else being done to clarify that for employers?
Nigel Graham
The cabinet secretary is clear that changing the law is not enough in itself. I work in criminal justice, but Neil Devlin works in community justice, where a lot of work is going on with employers on an employer support network to develop an understanding of why employers might have an unconscious bias that means that they do not employ someone who has an unspent conviction. A person might not be employed because they are not, or are not deemed to be, rehabilitated.
Organisations such as Virgin, BT and Marriott hotels are positive about employing people who have convictions and recognise that barring an individual just because they have an unspent conviction—or even a spent conviction under higher-level disclosure—is not necessarily good for those organisations, because they are cutting off their employment pool.
Community justice colleagues are discussing with employers and with organisations such as Recruit with Conviction and Positive Prison? Positive Futures how we can best encourage employers to take an approach of thinking that it is best to have a dialogue with someone and to consider that the person who has a conviction may be the best person for the job. If that person has all the skills, will employers ignore them?
We are making legislative change to the language and we want to remove the unconscious bias that lots of people do not realise that they have. We are immersed in justice issues, but someone who works in a small business and sees a person who is not rehabilitated might not want to employ that person and might ignore them.
We are changing the language so that we say that it is just about disclosure and nothing under the 1974 act prevents anybody from having a job. It is about disclosure for a period of time, and if a conviction is still unspent, employers can have a dialogue, so that there is that opportunity. Community justice colleagues are working with employers, in addition to the change in the law.
Liam Kerr
I understand. You talked about basic disclosure and three other categories at a higher level that require more disclosure. The bill does not change higher-level disclosures, but the committee understands that the Scottish Government is to consult on changes to higher-level disclosure. Will you give us more details on that?
Nigel Graham
We will consult shortly on such disclosure and the protection of vulnerable groups.
Liam Kerr
What is the interest there?
Nigel Graham
I am not a spokesperson on the Protection of Vulnerable Groups (Scotland) Act 2007 or on the higher-level disclosure system, and I am conscious that the consultation paper has not been published yet, so I am limited in what I can say.
The key point is that the paper will ask questions about how the PVG act works and the number of disclosures that are available under it. The consultation will look at what standard disclosure and enhanced disclosure mean. Standard disclosure involves spent and unspent convictions and enhanced disclosure involves not only spent and unspent convictions but part V of the Police Act 1997, under which the police are allowed to provide other relevant information, such as non-conviction information—soft information. That differs from the PVG act arrangements, under which, if someone is a part of the vetting and barring scheme, they are monitored for life. That act concerns regulated work with children and adults. Questions will be asked about what that means.
The consultation looks at the whole system of higher-level disclosures. It recognises that, as a result of case law in the Supreme Court, that system has changed. The paper brings that together and asks questions so that legislation might be introduced in the future.
12:15Liam Kerr
I appreciate your difficulty; let me rephrase the question, to see whether we can get a clearer answer. Do you know—
Nigel Graham
Well, I am limited in what I can say about another policy, which is outwith the remit of the bill. The consultation paper has not been published, and I do not want to get into detail on something that is not my policy area.
Liam Kerr
I understand that, but do you have a sense of the Government’s current thinking? Does the Government think that the system is working?
Nigel Graham
The current thinking of the courts is less disclosure.
Liam Kerr
Less disclosure in relation to higher-level checks.
Nigel Graham
And that is what has happened.
Liam Kerr
I understand. Thank you.
The Convener
I think that we just got there—but no further.
Daniel Johnson
On the changes to the Parole Board for Scotland, I am conscious that as the bill was being prepared, the Worboys case in England came into sharp public focus. To what extent did people reflect on the case and the lessons that might be gleaned from it? Will the proposed changes address the issues that the case raised? Might changes be needed that are outwith the scope of the bill?
Neil Devlin
It is fair to say that the changes that are proposed in the bill have been in train—and in gestation—for some time and are designed to address specific difficulties that have been identified.
On the issues that the Worboys case raises, it is important to say that there are distinct differences between the way in which the Parole Board for Scotland operates and the way in which the Parole Board for England and Wales operates. However, if additional issues are identified during the course of the committee’s investigations into the Parole Board, I see no reason why we would be against seeing whether we can address other difficulties while this legislative vehicle is available to us.
Daniel Johnson
If there is one lesson to be drawn from the case, it is that there is a really bad public perception of how the Parole Board for England and Wales operates—or certainly of how it operated in that case.
Changes to the tests for release are to be implemented. The Parole Board for Scotland suggested in its submission that greater clarity on the tests that are applied would improve the bill. Have you reflected on the suggestion? What is your reaction to it?
Neil Devlin
Part of the issue in that regard is that it is difficult to identify what a common test might look like. I do not think that there is, at large, an agreed position on what a common test could look like. If such a common test were to be identified and thinking on it was sufficiently far along, I see no reason why we could not look at it.
Daniel Johnson
A central point in the Parole Board for Scotland’s submission is about the board’s independence and how appointments to it are made. I understand the substantial points about changing the board’s composition; the point that the Parole Board makes is that greater assurances could and should be given about the independence of appointments. Indeed, the board suggests that the Judicial Appointments Board for Scotland should make appointments. Was such an approach considered and dismissed, and if so, why? If not, could it be considered during the passage of the bill?
Neil Devlin
There are a number of competing demands in relation to the way in which the current system works, which involve the regulator and how appointments might be made in future. We are perfectly happy to continue to consider such matters during scrutiny of the bill, and if an agreeable compromise can be reached whereby we can identify a way forward, we will be happy to consider it.
Daniel Johnson
Does that include the specific point about appointments being made by the Judicial Appointments Board?
Neil Devlin
We would probably need to discuss that with the Scottish Courts and Tribunals Service, but I am more than happy to get back to you on that point.
Daniel Johnson
The Parole Board also says that it should be explicitly set up as a “Tribunal NDPB”. Will you consider that point during the bill process?
Neil Devlin
The Scottish Government’s position is that the bill is designed to reinforce the independence of the Parole Board. We feel that the provisions as drafted are sufficiently strong in that regard. If, during the course of evidence, it becomes apparent that that is not necessarily the case, we would not dismiss that suggestion out of hand. However, our position is that the independence of the board is enshrined in the bill as drafted.
The Convener
I have one final question, which is on the composition of the Parole Board. Under the Prisoners and Criminal Proceedings (Scotland) Act 1993, the membership of the Parole Board must include a High Court judge and a psychiatrist. Why have those been omitted from the new composition under the bill?
Neil Devlin
I understand that the board’s position is that there is sufficient breadth of expertise in the current board members, so specific requirements are no longer necessary. Our intention is to ensure that there is a wide range of expertise on the board. Certain administrative difficulties arise because of the requirement to have those specific members, which can be overcome by its removal from the legislation.
The Convener
Can you be a bit more specific about what those difficulties are?
Neil Devlin
I am afraid that I do not have that information to hand, but I can certainly get back to you on that.
The Convener
The board looks at very serious cases, so it seems sensible to include a High Court judge and the particular expertise of a psychiatrist. I would welcome further information on that.
That concludes our questioning. I thank the witnesses for attending.
24 April 2018
24 April 2018
8 May 2018
15 May 2018
22 May 2018
5 June 2018
20 November 2018
18 December 2018
15 January 2019
What is secondary legislation?
Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:
- bring a section or sections of a law that’s already been passed, into force
- give details of how a law will be applied
- make changes to the law without a new Act having to be passed
An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).
Delegated Powers and Law Reform committee
This committee looks at the powers of this Bill to allow the Scottish Government or others to create 'secondary legislation' or regulations.
Read the Stage 1 report by the Delegated Powers and Law Reform committee published on 22 May 2018.
Debate on the Bill
A debate for MSPs to discuss what the Bill aims to do and how it'll do it.
Financial resolution
A financial resolution is needed for Bills that may have a large impact on the 'public purse'.
MSPs must agree to this for the bill to proceed.
Financial resolution transcript
The Presiding Officer (Ken Macintosh)
The next item of business is consideration of motion S5M-11941 on the financial resolution for the Management of Offenders (Scotland) Bill.
Motion moved,
That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Management of Offenders (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.—[Derek Mackay]
7 February 2019
Stage 2 - Changes to detail
MSPs can propose changes to the Bill. The changes are considered and then voted on by the committee.
Changes to the Bill
MSPs can propose changes to a Bill – these are called 'amendments'. The changes are considered then voted on by the lead committee.
The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.
The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.
How is it decided whether the changes go into the Bill?
When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.
The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.
Depending on the number of amendments, this can be done during one or more meetings.
First meeting on amendments
Documents with the amendments considered at this meeting held on 2 April 2019:
First meeting on amendments transcript
The Convener (Margaret Mitchell)
Welcome to the 11th meeting in 2019 of the Justice Committee. We have apologies from Shona Robison. I welcome back to the committee Bill Kidd, who is attending as her substitute.
A group of officials from the Jordanian Parliament is in the gallery. I welcome them to the Parliament and its Justice Committee.
Our first agenda item is consideration of the Management of Offenders (Scotland) Bill at stage 2. I ask members to refer to their copy of the bill, the marshalled list of amendments and the groupings of amendments.
I welcome to the meeting the Cabinet Secretary for Justice, Humza Yousaf, and his officials. Towards the end of our consideration today, the officials who are supporting the cabinet secretary will need to swap over. I will suspend the meeting briefly at that point.
Section 1—Requirement when disposing of case
The Convener
Amendment 2, in the name of Daniel Johnson, is grouped with amendments 3 to 30, 32 to 63 and 68 to 70. Amendments 54 and 55 are pre-empted by amendment 93 in the group entitled “Minor and technical”, amendment 58 is pre-empted by amendment 95 in the group entitled “Details in relation to monitoring”, and amendment 59 is pre-empted by amendment 99 in the group entitled “Details in relation to monitoring”.
Daniel Johnson (Edinburgh Southern) (Lab)
I reassure colleagues that, although there are almost 70 amendments in the group, I will probably need only around five minutes to cover each one. In all seriousness, although there are a lot of amendments in the group, there is one simple idea, which is that we should avoid using the word “offender” in legislation and public statements. That is because language matters.
On 1 May 2015, the Scottish Government gave a commitment to stop using the word “offender” in respect of ex-offenders or ex-prisoners, and it was right to do so. It is important that we give people who are changing their lives, rehabilitating and returning to society every opportunity to do so. By continuing to use terminology such as “offender” and “prisoner” once a conviction has been discharged and spent, we continue to stigmatise the individual and make it more difficult for them to make changes in their life.
The purpose of the amendments is to replace the word “offender” wherever possible in the bill with the term “relevant person”, which is much more neutral and avoids that issue. I do not believe that that has any technical implications, although I would appreciate insight on that from the Government.
The bill is an opportunity to alter the language and use new language. I understand that much of the bill relates to previous legislation, but we can, through drafting, use it to draw a line under the use of that terminology to refer to people who are no longer prisoners and therefore help their rehabilitation and destigmatise them and the issues that they face.
I move amendment 2.
Liam McArthur (Orkney Islands) (LD)
I thank Daniel Johnson for lodging all the amendments in the group and for not spending five minutes speaking to each of them. The points that he has made are very relevant. In the early evidence that the committee received, we heard about the impact that constant reference to “offenders” would have on our efforts to improve the rehabilitation of those who have served a custodial sentence. I confirm my support for the amendments.
When we took evidence, there was a concern that, because the bill talks about offenders, the use of electronic monitoring for those on bail pre-conviction would not be possible, so I wish to ask the cabinet secretary whether such monitoring would be possible if the committee supported the amendments that would change “offender” to “relevant person”. I appreciate that that would be quite a substantive amendment to introduce at stage 3, but I would welcome the cabinet secretary’s comments now or after he has had time to reflect on the matter.
John Finnie (Highlands and Islands) (Green)
I will lend support to Daniel Johnson’s amendments. Language is very important, and people are stigmatised enough through their involvement in the criminal justice system without there needing to be a lasting legacy. The amendments are very positive.
Liam Kerr (North East Scotland) (Con)
I cannot support the amendments at all. I understand the point that is being made, but I do not agree with it. The term “offender” is used because that is what a person is—someone who has offended. I accept that language matters, but that is why we need to use language that is relevant and language that says what has happened. We cannot airbrush the fact that an offence or a crime has been committed. I point to the seminal work “The Rule of Law”, by Lord Bingham, which sets out that the first principle of law is that it must be “accessible, clear and predictable”. The law must say what it refers to and, as far as possible, it should not deal in semantic gymnastics, as Daniel Johnson is trying to do. For that reason, I will oppose the amendments.
The Convener
To answer Liam McArthur’s question, amendment 63 says:
“In this Part, “relevant person” means an individual who has been convicted of any offence.”
I totally agree that language matters, but there is a need for the law to be as clear and unambiguous as possible. Although I have a lot of sympathy with the argument that people are often referred to as “ex-offenders” when there is no need for them to be, Daniel Johnson’s amendments would muddy the waters, when we should be ensuring that the bill is as clear as possible.
Fulton MacGregor (Coatbridge and Chryston) (SNP)
I have a lot of sympathy with Daniel Johnson’s amendments. However, before I decide to vote, I would like to hear from the cabinet secretary whether there would be any unintended consequences of agreeing to the amendments.
The Cabinet Secretary for Justice (Humza Yousaf)
I thank Daniel Johnson for lodging the amendments, and I thank the other committee members for their thoughts. I will try to pick up on the variety of points that were made. Daniel Johnson, Liam McArthur, John Finnie and Fulton MacGregor all, in some way or another, asked about the unintended consequences that might arise as a result of the amendments being agreed to, and I will touch on them.
However, before I do so, I associate myself with Daniel Johnson’s remarks. I have a different opinion from that of Liam Kerr, because this is about more than just “semantic gymnastics”. When I talk to those who work with people who have transformed their lives after being in prison or serving community sentences for the offences that they have committed, they often tell me—I am sure that they would tell committee members if they visited the Wise Group and other organisations—that the stigma that those people face, even though they have paid back their debt to society, causes incredible difficulties with employment and future opportunities.
Liam Kerr
I do not disagree with your point, but does that not go back to the convener’s point about the bill very much dealing with people who are in the offending cycle, if you like? The convener was making a distinction about how language is used after a sentence has been served. Is that the distinction that you are making?
Humza Yousaf
Liam Kerr’s point is not wrong; the bill’s purpose is to look at electronic monitoring that is the result of an offence that has been committed. I will touch on those issues, and I thought that the evidence that was given at stage 1 by a number of organisations from Howard League Scotland to community justice partners and many others was very convincing. In that context, we will support the vast majority of the amendments.
However, some of the language is necessarily tied to the language that was used in earlier reserved legislation, such as the Rehabilitation of Offenders Act 1974—that is an important point. I will touch on those technical issues in my remarks. Although I do not concede that the term “offender” is wrong in part 1 of the bill, I am not opposing most of the amendments. The term “relevant person” has the advantage of removing grounds for misunderstanding over the potential narrowness or breadth of the term “offender”, but I recognise that that was the focus of some discussion at stage 1. At stage 3, I will consider the use of the term “relevant person” in part 1 to ensure that substitution in place of “offender” does not make for awkward reading in conjunction with the various references in part 1 to “designated person”.
I take a very different position on amendment 63, in which a definition of the term “relevant person” is proposed. By defining it so as to include only those individuals who have been convicted of an offence, the amendment would significantly limit the scope of part 1. I am very clear that part 1 is not limited to post-conviction disposals, so it could cover pre-conviction disposals, such as bail conditions, at a later date.
I oppose amendments 68 to 70 for the same reason. They would alter the long title of the bill to refer only to persons who have been convicted of an offence. I remind members of the background here, as section 1 explicitly refers not to “convicted persons” but more simply to “persons”, who are then more generally described as “offenders” as a shorthand label for the purposes of this part of the bill.
In addition, section 1 does not refer to “disposals” as being final or post-conviction. Cases are disposed of at various stages of proceedings; bail is a particular disposal at a specific stage. Although at present the list of disposals in section 3(2) does not include any pre-conviction disposal, section 4(2) explicitly states that entries may relate to anything
“at any stage in criminal proceedings”.
It is important to note that the statement is obviously and deliberately unqualified by reference to conviction having occurred.
I indicated at stage 1 my intention to bring forward an amendment to further clarify that very position in part 1 of the bill. Unfortunately, my amendment was ruled inadmissible on grounds of scope by the convener when I tried to lodge it. It is of course the convener’s decision to make. I repeat that part 1 was devised with the intention of enabling pre-conviction disposals to be added to the list in section 3 at a later date via subordinate legislation. There was clear support at stage 1 by a number of witnesses and committee members for the addition of bail to the list of disposals that can be electronically monitored. I am clear that pre-conviction disposals, such as bail, can be included via subordinate legislation.
I hope that committee members can agree with that point. I emphasise that there is no disrespect to the convener over her ruling on the admissibility of my amendment. At stage 3, the matter will be in the hands of the Presiding Officer.
Daniel Johnson
My understanding is that, even on technical grounds, the word “offender” can and has referred to people pre and post-sentencing, which gives rise to the opportunity to look at whether amendments could be made for those who have not yet been sentenced. Is that the cabinet secretary’s understanding? I would be interested in any technical insight that he may have.
10:15Humza Yousaf
That goes back to what I said a minute ago. Section 1 does not refer to “convicted persons”. It refers only to “persons”, who are then generally described almost in shorthand as “offenders”. Amendment 63 gives a definition that relies on conviction whereas we do not want to limit the scope of the bill. In fairness, I think that Daniel Johnson will not want to limit the scope. The stage 1 report showed broad support for also looking at pre-conviction uses of electronic monitoring.
I reiterate my support for Daniel Johnson’s amendments but simply point out the unintended consequences. I support most of Daniel Johnson’s amendments to replace “offender” with “relevant person”. The exceptions are the restrictive definition of “relevant person” in amendment 63, and the restrictive changes to the long title in amendments 68 to 70. If amendments 63 and 68 to 70 are pressed, I invite members to reject them, but I also ask Daniel Johnson not to move them.
As the convener has already said, amendments 54, 55, 58 and 59 are no longer necessary in light of other amendments that we are making to part 1 of the bill.
In summary, I support the amendments in the group that change the terminology, but I urge the member not to move amendments 63 and 68 to 70. If he does move them, I urge the other members to reject them.
The Convener
You referred to the admissibility of some amendments so it is worth putting on the record that the Management of Offenders (Scotland) Bill is about post-conviction measures and relates to the management of persons after their guilt has been established. The amendments that you refer to cover persons before they have been convicted of an offence. As such, they contravene one of the grounds for admissibility in that an amendment is not admissible if it is not relevant to the bill. The amendments that were ruled to be inadmissible are not within the scope of the bill.
As the cabinet secretary rightly says, at stage 2, under standing orders, it is for the committee convener to rule on admissibility, and for those reasons the amendments to which the cabinet secretary refers have been ruled to be inadmissible.
Daniel Johnson, please wind up and indicate whether you wish to press or withdraw amendment 2.
Daniel Johnson
I begin by thanking all the members who have contributed to the debate in a constructive manner, and I thank members, particularly those who disagree with the amendments, for recognising the intent with which I lodged them. I also thank the cabinet secretary for his constructive remarks.
I will not move amendments 63 and 68 to 70. I accept the cabinet secretary’s arguments that I would not want to limit the scope of the bill.
Two key arguments were made by those opposing the amendments. One was on precision and clarity, and the other was on principle.
On precision and clarity, as the cabinet secretary rightly pointed out, the bill deals with people who are at a number of different stages in the criminal justice process. Continuing to label people and give them one identification throughout that process is not helpful. It lacks precision.
On the point of principle, I have one clear principle when it comes to the criminal justice system. It must seek to rehabilitate people and give them every opportunity for rehabilitation. When they fail to take that opportunity, the justice system absolutely must respond swiftly and robustly, but people must be given that opportunity. It is unhelpful to use stigmatising labels such as “offender” throughout the stages of the process and once people cease to be prisoners. For those reasons, I will press amendment 2 and move all the others except amendments 63 and 68 to 70.
The Convener
The question is, that amendment 2 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 2 agreed to.
Amendments 3 to 7 moved—[Daniel Johnson]
The Convener
The question is, that amendments 3 to 7 are agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendments 3 to 7 agreed to.
The Convener
Amendment 78, in the name of Liam Kerr, is in a group on its own.
Liam Kerr
Amendment 78 seeks to ensure that the court will make available a summary of evidence during the case.
Members will recall that during stage 1, James Maybee of Social Work Scotland told us:
“On the information and evidence that criminal justice social work receives to inform our risk and needs assessment and the level of service/case management inventory tool, what is sorely lacking is the summaries of evidence that are narrated in court.”
He went on to say:
“It is a critical part of enabling the social worker to provide a much more evidence-based and objective report on risk and need. Without it, we are entirely reliant on the offender’s version of events. There may be important information missing from that, particularly in relation to victims.”—[Official Report, Justice Committee, 8 May 2019; c 7.]
What we learn from that is that summaries of court evidence are critical to having risk assessments that are objective and accurate. Without them, social workers are flying blind, with no access to information about how decisions might affect victims—apparently, their main source of information is the offenders themselves.
Colleagues will recall that we made a recommendation on the issue in our stage 1 report. Recommendation 182 says:
“the Committee calls on the Scottish Government to explore with the Scottish Courts and Tribunals Service how to more routinely supply criminal justice social workers with summaries of evidence from court cases, to inform the preparation of any risk assessments. Such summaries would help for both pre-sentence reports and reports issued prior to release from a custodial sentence.”
Amendment 78 seeks to give effect to that recommendation to ensure that social workers have as much evidence as practicable in front of them before making crucial risk assessments, which will inform judges’ decisions.
I move amendment 78.
John Finnie
I recall that that recommendation was unanimous, and there is certainly merit in it. My concern is about who produces the summary and what its status is. Ideally in a busy court, there would be a criminal justice social worker there, but I would be concerned about their capacity to produce the summary.
What would the status of a summary be? Perhaps Mr Kerr can help with that point. Would the summary be open to challenge? It could have a significant impact on the individual to whom it refers.
On first reading the amendment, I thought that it was a good idea because it is important that everyone has the maximum information around which to make an informed decision. I will keep my position open at this stage, because I am interested in the mechanics of the proposal. I hope that we will hear more from Mr Kerr on some of those issues.
Daniel Johnson
I support amendment 78. When we consider the findings of both Her Majesty’s Inspectorate of Constabulary Scotland and HM Inspectorate of Prisons Scotland following the tragic death of Craig McClelland, we see that the important point about information sharing was at the forefront of both reports. It is vital that all the relevant information is available to those making decisions throughout the criminal justice system. It strikes me that if a court takes the time to carefully examine evidence, it would be a mistake not to use that evidence subsequently.
Amendment 78 is in line with amendment 131, which is in my name and which seeks to include in subsequent decisions consideration of whether bail had previously been granted. Both amendments follow from the same insight: careful deliberation and examination of facts should inform subsequent decisions.
Liam McArthur
I thank Liam Kerr for lodging the amendment. As he said, it reflects the recommendation that we made in the stage 1 report. As John Finnie said, the practicalities of how it is delivered are of interest to all members of the committee.
Because the amendment has been lodged at stage 2, we have an opportunity to spend time, if necessary, adjusting it to make clear where the responsibility lies and to ensure that the way in which it is applied is not overly onerous on those who already have heavy workloads. That would seem to me to be time well spent.
I look forward to hearing what the cabinet secretary has to say.
Rona Mackay (Strathkelvin and Bearsden) (SNP)
While I accept that Liam Kerr’s amendment is well meaning, I agree with John Finnie and Liam McArthur that the mechanics of it are worrying. It is ambiguous; its purpose is not terribly clear. It would place an enormous burden on and be costly and time consuming for the Scottish Courts and Tribunals Service. How would the service identify which was the “relevant local authority”? Until there is more clarity about the mechanics, I cannot support the amendment.
Fulton MacGregor
Like John Finnie, Liam McArthur and Rona Mackay, I feel that the main issue with the amendment is in the practicalities and the mechanism. However, as a former criminal justice social worker, it would be remiss of me not to say that while I accept that Liam Kerr directly quoted James Maybee, that quotation is perhaps not representative of what he was trying to say at the time. In our evidence sessions and in the report, it became clear that there is a lot more to a criminal justice social work assessment than solely hearing the individual’s views. Although those views are an important part of the assessment, I have made the point several times that there are other parts to it.
The amendment is definitely well meaning; I appreciate that the intention is to support social work staff. However, it might have unintended consequences and might end up not being supportive to the social work staff doing the assessment.
Before coming to a decision, I would like to hear the cabinet secretary’s views on the amendment, but I am inclined not to support it.
The Convener
It seems eminently sensible to make a summary of the evidence that was presented during the case available to the relevant local authority. That would implement the committee’s recommendation in our stage 1 report. However, I look forward to hearing what the cabinet secretary says.
Humza Yousaf
Thank you, convener.
I echo what other members have said: the intention behind Liam Kerr’s amendment is admirable. I think that we can coalesce around that. My concern—and this is why the Government cannot support the amendment—is with the mechanics and the process, which Rona Mackay, Fulton MacGregor, John Finnie and Liam McArthur asked about. I will go into those issues in more detail, but it is perhaps worth starting with what the convener said in relation to group 1. The law should be precise, and the difficulty with amendment 78 is that, despite the good intention behind it, it is not precise.
On the mechanics, any new information-sharing arrangements that are created in the justice system must demonstrate clear benefits relative to the cost of putting those arrangements in place. At present, there is no mechanism across all court business for routinely collecting and transmitting such evidence from a court. What would a summary of evidence look like?
The Scottish Courts and Tribunals Service has commented on the amendment; it noted that it might be costly for the service and potentially time consuming for members of the judiciary, if they were to have to participate in such a process. The service has also said that there may be other mechanisms that may be more proportionate for the occasions on which a summary would be required. For example, dialogue with court-based social workers might achieve the same effect.
In practical terms, I note that it is not clear how the court would identify which local authority was the “relevant local authority” at the time of sentencing.
10:30John Finnie
On the involvement of a court-based social worker, the reality is that, as we saw at Edinburgh sheriff court, a criminal justice social worker does not attend every trial. What has been suggested will require tremendous co-ordination, which might add to the many challenges with co-ordination that already exist in our criminal justice system. As I understand it, it is not the case that every court has a criminal justice social worker in attendance.
Humza Yousaf
I will come on to address this in a moment, but a summary of evidence might not be needed for every single case that goes to court, although one might be required in certain cases. There is clearly and understandably a sense from some quarters of social work that it might be very helpful to have a read-out of the evidence or further information. As parliamentarians, we should work with the Scottish Courts and Tribunals Service to try to find an appropriate process.
I also think it important to put on record the fact that, with the risk assessment process, it is crucial that we are led by the Risk Management Authority’s considerations as to what information will be most relevant. Accordingly, as parliamentarians, we need to be cautious about not pre-empting such considerations and—to respond to John Finnie’s point—predetermining the information that would be considered as having some bearing on risk. We need to avoid prescribing information that might not be required by those tasked with making decisions on electronic monitoring or which is irrelevant or detrimental to any such decision.
As it stands, amendment 78 would cut across all forms of court-imposed electronic monitoring. Because a social work report is prepared for the court when a restriction of liberty order is being considered, social work will already be aware of the background to such cases. As a result, a requirement for the court to provide information to a local authority seems to have very limited merit, given that the authority is likely to be aware of that information already.
In addition, social work involvement in monitoring an individual serving a community sentence will vary, depending on the community sentence that is imposed. For example, there is no requirement for a supervising officer to be appointed by a local authority for an individual sentenced to an RLO, so the provision of a summary of evidence in such circumstances will be a relatively pointless exercise.
As I have said, the mechanics of amendment 78 and its lack of precision in the way that it cuts across all court business concern me, and, although I think that it is well intentioned, I ask Liam Kerr not to press it. Instead, I ask him to work with us and other interested partners and stakeholders to see whether we can reach an agreed position by stage 3. If he chooses to press the amendment, I ask committee members to consider rejecting it for the reasons that I have outlined.
Liam Kerr
Can I make an intervention on that point just before you finish?
Humza Yousaf
Sure. Why not?
Liam Kerr
Just on a point of process, surely my pressing the amendment and its being voted down do not preclude our working together on an amendment for stage 3.
Humza Yousaf
Sure. I am always open to working with Liam Kerr and other committee members. He can choose to press the amendment, and we will see what happens. Regardless of whether or not it is defeated, my offer to work with him is an open one.
The Convener
I call Liam Kerr to wind up on amendment 78 and indicate whether he wishes to press or withdraw it.
Liam Kerr
I genuinely thank committee members and the cabinet secretary for their thoughts and comments. I will respond to a few of the concerns that have been raised.
I am not convinced by Rona Mackay’s comment that the purpose behind the amendment is not clear. In fact, I think that it is completely clear.
With regard to the point that Mr Finnie made about the court process, it cannot be beyond the wit of man to make the proposal work in a court situation. He mentioned the court-based social worker, but I think that what has been proposed can be done. It is possible. I understand and accept the point about resourcing and see where it comes from, but members will be aware that amendment 76, which is also in my name and which we will consider later, specifically deals with the resources for the bill. I have no doubt that members will be looking forward to agreeing to that amendment, because if it is agreed to, the resourcing will be available for the process that is set out in amendment 78.
I hear Mr Finnie’s point about the status of a summary, but the proposal is not just about assisting and ensuring fairness for all parties—including the relevant person, accused or offender—but about ensuring that social workers are fully resourced.
To pick up on James Maybee’s point about information on victims being missing, there is a real concern that we focus an awful lot on offenders—
John Finnie
Will the member give way?
Liam Kerr
Yes, of course.
John Finnie
For the avoidance of doubt, I support the direction of travel, but, as ever, I am interested in the practicalities. On the status of the report, would it be open to the individual whom the report is about, or to a victim, to challenge it? Liam Kerr is right that technical solutions are possible. Also, who would compile the report?
Liam Kerr
I am grateful for that intervention. John Finnie is quite right: we would need to work that out as part of a process. The principle that I am arguing for is that there needs to be equality of arms between the offender, the victim and social work, to make sure that we come to the best decisions, and the right resourcing decisions, once the process is in place.
The final challenge that I faced was from Fulton MacGregor, who said that the amendment might not be helpful to social work staff. I attach particular weight to his comments. Given his background, I was interested to hear what he had to say. In response, I suggest that James Maybee was very clear that, because of the lack of summaries, social work is effectively flying blind. It seems to me that my amendment would help; it would improve the system.
Fulton MacGregor
Have you had any discussions with Social Work Scotland, social workers and all the relevant agencies about the amendment?
Liam Kerr
No, which is why I attach particular weight to your contribution. I refer to the evidence that we heard and the committee’s unanimous recommendation to call for such an approach. I am simply bringing forward the committee’s view. My amendment will help to address the very point that James Maybee made and ensure that social work is not flying blind. The amendment would help social workers, and we should agree to it.
I press amendment 78.
The Convener
The question is, that amendment 78 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Against
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
The Convener
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 78 disagreed to.
Amendment 8 moved—[Daniel Johnson].
The Convener
The question is, that amendment 8 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 8 agreed to.
Section 1, as amended, agreed to.
Section 2—Particular rules regarding disposals
Amendment 9 to 12 moved—[Daniel Johnson].
The Convener
The question is, that amendments 9 to 12 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendments 9 to 12 agreed to.
Section 2, as amended, agreed to.
Section 3—List of the relevant disposals
The Convener
Amendment 81, in the name of the cabinet secretary, is grouped with amendments 82 and 83.
Humza Yousaf
Amendment 81 will introduce electronic monitoring for supervised release orders, which combine court-imposed supervision with early release. The SRO is not one of the court disposals that are listed in section 3, and it is not one of the various forms of licence condition that could attract an electronic monitoring requirement that are listed in section 7.
An individual who is the subject of an SRO is released with a supervision requirement and licence conditions that are set by the court. Therefore, it is appropriate to add SROs to the list in section 3, so that the court can impose an electronic monitoring requirement. That will enable a movement restriction in an SRO to be electronically monitored, in the same way as a movement restriction in any other form of early-release licence—parole, home detention curfew, temporary release and so on—can be monitored.
Amendments 82 and 83 will amend section 3 to remove all references to quasi-criminal sexual offences prevention orders and sexual harm prevention orders. The bill is aimed solely at criminal proceedings: it brings all the existing powers to impose electronic monitoring in criminal proceedings into a single statutory provision. The policy intention is that the bill will not extend to orders that are given outwith criminal proceedings, because different safeguards and oversights apply to criminal orders from those that apply to civil orders—for example, in relation to the duration of monitoring.
Amendments 82 and 83 make it clear that, in relation to orders that can be imposed in criminal proceedings or on application by a chief constable, the bill applies only to orders that go through the criminal proceedings route. That is an important clarification that will ensure that the legislation, as a single statutory provision for electronic monitoring in criminal proceedings, does not inadvertently cast doubt on the ability of any court to proceed with its existing powers to impose electronic monitoring.
It is not the intention to insinuate, simply by excluding all civil orders from the list in section 3, that the court has no power to impose electronic monitoring in civil proceedings. Rather, the bill will make no changes to the existing powers that are available to the civil courts when they impose movement restrictions on an individual. Where those powers enable the civil courts to order electronic monitoring of movement restrictions, the civil courts should, of course, retain that discretion.
I move amendment 81.
Liam Kerr
On amendments 82 and 83, I understand what you said about SOPOs and SHPOs being covered by different legislation. However, can you clarify whether the practical effect of removing such orders from the bill will be that more people who are subject to such orders—sexual offenders—might be out on licence, or some such, and not the subject of electronic monitoring? Will the practical impact of the amendments be a reduction in protection of the public?
Humza Yousaf
I appreciate that important question. The answer is no—there will be no diminution or degradation of, or detrimental effect on, protection of the public because, as you rightly pointed out in asking the question and as, I hope, I said, we are not casting doubt on the ability of a court to proceed using its existing powers. Legislation is already in place to cover restrictions in relation to the quasi-criminal orders that we are talking about.
If Liam Kerr or the committee need further reassurance on that, I will be happy to provide it in writing. I am happy to say on the record that the change will not reduce the practical impact or effect of SOPOs and SHPOs.
The Convener
That is an important point to have on the record. Amendments 82 and 83 will not adversely affect monitoring of sexual offenders.
Amendment 81 agreed to.
Amendments 82 and 83 moved—[Humza Yousaf]—and agreed to.
Section 3, as amended, agreed to.
10:45Section 4—More about the list of disposals
Amendments 13 to 16 moved—[Daniel Johnson].
The Convener
The question is, that amendments 13 to 16 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendments 13 to 16 agreed to.
The Convener
Amendment 84, in the name of Humza Yousaf, is grouped with amendments 85 to 89, 91, 92 and 94 to 100. Agreement to amendment 95 will pre-empt amendment 58, and agreement to amendment 99 will pre-empt amendment 59.
Humza Yousaf
The amendments in the group are minor technical amendments that are designed to provide additional clarification of some of the language that is used in the bill. They will make no substantive change to the operation of the provisions, but are, I think, useful for a clear and full understanding of what the provisions say and do.
There are various references in part 1 of the bill to movement restrictions: amendments 84, 85, 86 and 96 will clarify those references by stating that movement restrictions include
“being at, or not being at, a particular place”.
Section 8(2) describes the types of devices that may be specified as “approved devices”. Amendment 87 provides that the provision would include devices that measure
“the level of alcohol, drugs or other substances”
taken by the offender, rather than just measuring the presence of alcohol, drugs or other substances in the offender’s body. That ties in with amendment 98, which I will come to shortly.
Amendment 88 will add a subsection to section 8, to provide that any apparatus that is linked to the approved device can also be prescribed as an approved device under section 8(1). That will ensure that there can be no doubt as to the legitimacy of using a radio frequency box, for example, alongside an electronic tag.
Section 9(3) provides that regulations that are made under section 9
“may set out how a device is to be worn ... or used ... by an offender.”
Amendment 89 provides that regulations may set out how “or when” a device is to be worn or used. That provision is to provide for circumstances in which the monitoring requirement might be intermittent.
With regard to amendment 91, section 12(2) provides that an
“offender must obey the instructions given by the designated person on how an approved device ... is to be ... worn ... or ... used”.
Daniel Johnson
Amendments 89 and 91 seek to improve the specificity on wearing of devices. There is concern about offenders cutting off devices or tampering with them in other ways. Will the amendments improve the ability to respond to such instances, especially when the intention of the individual is to tamper with the device in order to evade the restrictions that the monitoring is supposed to place on them?
Humza Yousaf
I will make a couple of points. I will probably come on to that specific issue and some of the unintended consequences when Liam Kerr speaks to his amendments on cutting off or tampering with tags.
In my amendments 89 and 91, the change of language is to provide sufficient flexibility in how monitoring might be given effect. A designated person might need to provide instruction on intermittent monitoring, so there should not be an effect on, for example, whether an individual cuts off or otherwise tampers with a tag. As I said, I can come on to that later, when Liam Kerr speaks to his amendments. Amendments 89 and 91 should not have the effect about which Daniel Johnson is concerned.
I will move on to the other technical amendments. Amendment 92 will add a subsection to section 12 to clarify that the obligations to wear, use and refrain from tampering with or damaging the device
“include any apparatus linked to the device”.
Section 14(3) states that evidence of a breach
“may be given by way of”
an automated “document” containing relevant information. Section 14(4) states that “This includes” specific types of information. Amendment 94 will change that phrase in section 14(4) to “Examples are”. That is a minor change for sense in the wording of section 14.
On amendment 95, section 14(4) refers to information about
“the offender’s whereabouts at a particular time”.
Amendment 95 will change that to the “device’s whereabouts” to reflect the logic that the automated evidence is of the device’s whereabouts rather than the offender’s whereabouts, although the latter will often be easily shown by or inferred from the former.
Section 14(4) states the types of information that can be included in an automated statement from the device. Amendment 97 will add to the list the
“connectivity ... or working of the device”
and the
“wearing ... or use of the device ... at a particular time”.
Coupled with information about the device’s whereabouts, that should assist in showing that the offender was wearing the device at the time.
Section 14(4)(b) provides that automated information includes “the presence of alcohol” and so on “in the offender’s body”. Amendment 98 provides that the automated evidence will include the presence “or level” of alcohol and so on. That ties in with amendment 87, to which I spoke earlier.
Amendment 99 will clarify section 14(4)(b), which provides that automated information includes “the presence of alcohol” and so on “in the offender’s body”, by having it state that the automated evidence will be the presence of alcohol in the “wearer’s or user’s” body. That is to reflect the logic that the automated evidence is of consumption by whomever is wearing the device, although—again—it will often be easily shown by or inferred from related facts that it is the offender.
Amendment 100 is a minor correction to change “a” to “the” at the start of section 14(6)(c).
That summarises the proposed changes that will be made through the amendments in the group. As I said, they are merely for improved understanding of how the monitoring system is intended to work, and will have little substantive or practical effect. I again note the concerns that Daniel Johnson has raised. I will perhaps come on to them in a little more detail in considering amendments that we are yet to debate.
I move amendment 84.
The Convener
For the avoidance of doubt, will you clarify what amendment 93 will do? It appears that it will allow non-compliant prisoners to avoid recall to custody. Is that the case?
Humza Yousaf
I did not speak to amendment 93.
The Convener
I apologise. Amendment 93 is not in this group.
Amendment 84 agreed to.
Amendment 17 moved—[Daniel Johnson].
The Convener
The question is, that amendment 17 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 17 agreed to.
Section 4, as amended, agreed to.
Section 5—Requirement with licence conditions
Amendments 18 to 25 moved—[Daniel Johnson].
The Convener
The question is, that amendments 18 to 25 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendments 18 to 25 agreed to.
Section 5, as amended, agreed to.
Section 6—Particular rules regarding conditions
Amendments 26 to 28 moved—[Daniel Johnson].
The Convener
The question is, that amendments 26 to 28 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendments 26 to 28 agreed to.
Section 6, as amended, agreed to.
Section 7—List of the relevant conditions
Amendment 29 moved—[Daniel Johnson].
The Convener
The question is, that amendment 29 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 29 agreed to.
Amendment 85 moved—[Humza Yousaf]—and agreed to.
Amendment 30 moved—[Daniel Johnson].
The Convener
The question is, that amendment 30 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 30 agreed to.
Section 7, as amended, agreed to.
After section 7
The Convener
Amendment 31, in the name of Daniel Johnson, is grouped with amendment 131.
Daniel Johnson
Both amendments in this group arise from the same insight, which I alluded to earlier in relation to one of Liam Kerr’s points, to do with information sharing.
HMIPS, in its “Report on the review of the arrangements for home detention curfew within the Scottish Prison Service”, was clear and robust on the issues around information sharing in relation to Craig McClelland’s tragic death. The report stated:
“Whilst an assessment process clearly existed, it may not be regarded by some to meet the definition of ‘robust’.”
It went on to say:
“Those making decisions to release an individual on HDC do not have access to intelligence held by Police Scotland, nor is it easy for them to access information regarding any outstanding charges, or ongoing investigations relating to the HDC application. This situation makes it difficult to come to an informed decision about an individual’s overall suitability for HDC.”
The report recommended that, prior to making a decision,
“The person charged with making the decision to release someone on HDC should have ... access to information and intelligence held by Police Scotland, the Scottish Court and Tribunals Service and the Crown Office and Procurator Fiscal Service”.
Amendment 31 would ensure that there is a legal obligation on those agencies and bodies to share exactly that information with the SPS and, therefore, with individuals making the decision about whether to grant someone HDC. Putting that in law is of fundamental importance, so that the tragic circumstances that arose cannot happen again. There would be a legal obligation—a legal requirement—on agencies to share information, exactly as HMIPS recommended.
11:00
Amendment 131 relates to decisions made about an individual during the court process. It strikes me that many of the considerations that are relevant in deciding whether to grant an HDC are similar to those when deciding whether to grant bail or to remand someone who appears on charges—looking at whether the person is a risk and whether there are relevant issues or concerns, for instance. While we should acknowledge that circumstances can change—obviously, there will be a period of time spent in prison or in another context in which a person can reform; and I am not saying that that cannot happen—the decision made by the judge or sheriff about whether to bail or to remand someone is clearly relevant to someone making a decision about HDC. I realise that there are issues around the use of remand in Scotland, which I would like to explore further while we are considering these amendments. Nevertheless, we should have regard to the information and the evidence that the courts used when we are establishing the risk in relation to granting an HDC and, more broadly, electronic tagging.
I hope that members will consider those issues when looking at these amendments.
I move amendment 31.
Fulton MacGregor
I have quite a lot of sympathy with the proposal. I apologise if amendment 31 is intended as a probing amendment but, as I said in relation to Liam Kerr’s amendment, I think that it needs a wee bit more work with regard to what information would be shared and what information would be relevant. I do not see any detail in that regard. The landscape is quite complicated and we would need to consider the proposal a lot more closely, paying particular attention to human rights and data protection in relation to sharing information, because not every piece of information would be relevant.
I am interested to hear what the cabinet secretary says about the proposal. I think that it has merit, but I do not know whether the approach is developed enough for me to support it at this stage. If it is a probing amendment, that is fair enough, and perhaps the issue could be brought back at stage 3.
The Convener
It strikes me that these amendments would make the process of early release more robust.
Liam Kerr
I endorse that comment; I think that the amendments are good. I hear what Fulton MacGregor says, but I—respectfully—disagree. There is plenty of detail in the amendments and they would make the process more robust. I look forward to supporting them.
Humza Yousaf
Again, I thank Daniel Johnson for bringing his amendments before the committee. My concerns about the amendments are around their drafting, the unintended consequences that they might have and whether they are necessary. I will try to deal with each of those points as briefly as I can.
On amendment 31, while the sharing of information between criminal justice organisations can, where appropriate, assist organisations in making decisions on an individual before and after conviction, the key consideration is the extent to which the amendment is necessary. All of the bodies that are named in amendment 31 already routinely feed information into the HDC decision-making process. The information that is currently shared with Scottish ministers by the Scottish Courts and Tribunal Service, for the purposes of HDC, includes a copy of any social work report or psychiatric report that was made available to the court; and the police share information, which, as a result of the review of HDC, now includes intelligence information relating to serious organised crime links. Social work departments routinely feed into the HDC release decision-making process, particularly through their role in the assessment of the home environment into which the individual will be released. Therefore, given the breadth of information that is already routinely shared among criminal justice organisations for the purposes of HDC, I am not convinced that a statutory obligation is required.
There are also some concerns about the drafting of amendment 31. First, the amendment would only require the Scottish ministers to request information prior to releasing a prisoner on HDC; there would be no obligation to wait for a response or to consider the information that is provided. Although I accept that that is no doubt implied in the underlying terms of the amendment, the language is not specific or precise.
Secondly, the description of the information that should be requested is very wide, as Fulton MacGregor noted. It includes any information that is relevant to monitoring the prisoner but it is not clear what specific information should be requested by the Scottish ministers or what information should be provided by the relevant organisations.
Although I respect the intention behind amendment 31, I ask that the amendment not be pressed. As ever, I am willing to work with the member in advance of stage 3 to give reassurances, where I can.
Liam McArthur
In your remarks about Liam Kerr’s amendment on social work reports, I got the impression that you were not minded to frame an alternative to the provision in the bill, but I get the impression from what you are saying here that the language in this part of the bill could potentially be tightened up to address the concerns that have been outlined. Is that the case? Do you have an issue with the phraseology and the precision of amendment 31, rather than believing that the proposed new section should not be included in the bill?
Humza Yousaf
My issue is with the need for it and the precise wording. I am not convinced that the proposed new section is necessary. As I have said, a lot of work is being done on risk management. That aside, the fact that the language and the technical drafting of the amendment are such that it could have unintended consequences concerns me. I would be happy to engage in dialogue in advance of stage 3 to provide reassurances. It might well be the case that, despite those reassurances, members still want to lodge amendments in this area at stage 3. However, I hope that having the discussion in advance of stage 3 would help to inform any potential stage 3 amendments.
I turn to amendment 131. Compared with the decision about whether to release someone on HDC, the decision to release, or to refuse to release, someone on bail is taken at a different point in time, by a different person, for a different purpose and using different information. Someone might not be granted bail because, for example, it has been assessed that there is a risk that they will not appear at court. That might be because they have a chaotic lifestyle at the time. That judgment is very different from the process of determining whether someone presents a risk of harm. Those are crucially important differences.
John Finnie
Would you not acknowledge that someone’s propensity to disregard bail conditions should be an important factor in the overall assessment?
Humza Yousaf
Yes, I accept that point. I am making the point that different factors have to be taken into account depending on whether bail is being considered or another form of monitoring. It is important to put those differences on the record. I am not convinced that amendment 131 recognises that fact.
John Finnie
I was talking about someone having a history—a pattern—of not adhering to bail conditions, which ultimately results in a custodial sentence. If consideration is given to releasing such a person early on a home detention curfew, surely that would be a factor to consider. I am not saying that someone should be refused early release on HDC for previously having breached bail conditions, but it is a relevant consideration.
Humza Yousaf
Yes, I do not doubt that it is relevant. However, there are different considerations in the two circumstances. Not everybody will have a pattern of not adhering to bail conditions, because it might be the first time that they have appeared before a court. Notwithstanding that, John Finnie’s point is important.
The substantive point that I want to make is that any decision by a public authority must be made in the light of the relevant information, and information that is irrelevant to the matter at hand should be disregarded. Amendment 131 risks placing an obligation on the Scottish ministers to consider information that, in many circumstances, might be irrelevant to the decision about whether to release a prisoner on HDC. That could leave a decision to release someone—or to refuse to release someone—on HDC at risk of legal challenge. Moreover, it would also place an administrative and financial burden on the Scottish Courts and Tribunals Service, as the process of collecting the data and recording it in a transmittable form would be likely to involve a judicial member’s time. Accordingly, I ask that amendment 131 not be moved and, if it is moved, I urge the committee to reject it.
In summary, we should allow the work that is under way with justice partners, looking at HDC guidance and governance, to conclude; and we should be led by the Risk Management Authority, which is the body that can best provide advice on the factors that have the greatest relationship with risk. In my view, prescribing what that information should be first is not the correct approach.
I recognise Mr Johnson’s desire for some on-going parliamentary involvement in these issues. We are not due to discuss the convener’s amendment 130 today, but it seeks to oblige the Scottish ministers to prepare statutory guidance on HDC and to have it laid before the Parliament. I am minded to support that amendment and, if Mr Johnson is content not to press his amendment, I would be happy to work with him and the convener on that amendment to find a form of words that sets out what HDC guidance should cover in respect of information exchange.
Daniel Johnson
I will deal with amendment 131 before I deal with amendment 31. I acknowledge much of what the cabinet secretary has said about amendment 131, but there is a broad principle here, which the committee has encountered a number of times, about decisions and information that have been available to the courts but which, subsequently, are not accessible to decision makers, and that point needs to be addressed. I recognise that the process is perhaps much more complicated than amendment 131 suggests it is, so I will not move amendment 131 on that basis.
The cabinet secretary mentioned the need to bear in mind the fact that the Risk Management Authority looks at risk factors, and I turn to amendment 31 and the issues that have been raised about its broad nature. The amendment is broad because it is important that legislation is flexible. Putting specific risk factors in the bill and in black-letter law would be an error. That is precisely why the amendment is structured as it is. Subsection (4) of the amendment states:
“The Scottish Ministers may by regulations make further provision for the purposes of and in connection with this section.”
That is precisely so that ministers can specify in more detail and keep under review the manner in which information must be shared by them and, therefore, with the Scottish Prison Service, as it will discharge the Scottish ministers’ duties with regard to much of the bill.
I will press amendment 31. I am very much aware of what members have said about the lack of specificity in the amendment, but that is deliberate. It is important that the legislation is flexible, and subsection (4) would enable that.
More broadly, although the cabinet secretary stated that the amendment does not recognise what already happens and talked about whether it is necessary, the reports by HMIPS and HMICS spell out in detail exactly why it is necessary: the situation has failed with tragic consequences. Information has not been shared in a timely or relevant manner and it certainly has not been acted on. Given those failures, we must put into law a provision to ensure that there is a legal requirement to share information so that it can be acted on. That is why it is necessary to put the amendment into law. It is not about saying what is or is not happening; the aim is simply to state what must happen.
Humza Yousaf
I mentioned that point in my remarks; what Daniel Johnson is trying to do might not give effect to that good intention. All that his amendment would oblige the Scottish ministers to do would be to request information; they would not have to wait for that information to come back to make a decision on HDC release. I do not doubt the consequences, but the wording is simply about requesting information as opposed to being about waiting for the information to come back, digesting it, poring over it and making an informed decision based on it. The practical effect of that might not fulfil what Daniel Johnson has articulated.
Daniel Johnson
I will reply slightly impudently, if I may: I am sorry to hear that the cabinet secretary has such a pessimistic view of how public bodies might respond to ministerial requests.
In all seriousness, a number of measures and powers are set out in law in terms of requests. If the principle is correct, I would be more than happy to look at the amendments at stage 3 to improve the robustness of the approach.
I will press amendment 31 because it is important. If it is not agreed to, I will look at how it could be improved and lodge an amendment at stage 3, as the issue is of fundamental importance.
Amendment 31 agreed to.
Amendment 131 not moved.
Section 8—Approved devices to be prescribed
Amendment 32 moved—[Daniel Johnson].
11:15The Convener
The question is, that amendment 32 be agreed to. Are we all agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 32 agreed to.
Amendment 86 moved—[Humza Yousaf]—and agreed to.
Amendment 33 moved—[Daniel Johnson].
The Convener
The question is, that amendment 33 be agreed to. Are we all agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 33 agreed to.
Amendments 87 and 88 moved—[Humza Yousaf]—and agreed to.
Section 8, as amended, agreed to.
Section 9—Use of devices and information
Amendment 34 moved—[Daniel Johnson].
The Convener
The question is, that amendment 34 be agreed to. Are we all agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 34 agreed to.
Amendment 89 moved—[Humza Yousaf]—and agreed to.
Amendment 35 moved—[Daniel Johnson].
The Convener
The question is, that amendment 35 be agreed to. Are we all agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 35 agreed to.
Amendment 36 moved—[Daniel Johnson].
The Convener
The question is, that amendment 36 be agreed to. Are we all agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 36 agreed to.
Section 9, as amended, agreed to.
Section 10—Arrangements for monitoring system
Amendment 37 moved—[Daniel Johnson].
The Convener
The question is, that amendment 37 be agreed to. Are we all agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 37 agreed to.
The Convener
Amendment 90, in the name of John Finnie, is in a group on its own.
John Finnie
This amendment is fundamentally about one’s position with regard to public money and whether one feels that there is a role for the private sector. In our scrutiny of the bill, what became apparent was the reliance on the private sector to provide information in advance of that scrutiny or thereafter. It seemed to play a very pivotal role.
Actually, I do not think that there should be a role for the private sector in this important area, and I am not alone in thinking that. Indeed, I have a very lengthy list of examples of the party of Government being against it, too. In 1999, the Scottish National Party said that it remained
“totally opposed to private prisons”;
in 2001, it passed a motion calling for a halt to the privatisation of prisons; and its 2003 manifesto says:
“First, we will ensure public services should be just that—public. Government money intended to provide public services must do ... that and should not be wasted through inefficiency or ... taken out of the system to pay excessive private profit.”
In 2005, in a BBC documentary on Her Majesty’s Prison Kilmarnock, the then SNP justice spokesperson said:
“Public safety is too important an issue to be at the whim of private profit.”
The SNP’s 2007 manifesto said:
“We are committed to a publicly owned and run prison service.”
In 2007, the SNP blocked the plans for the replacement prison in Bishopbriggs. The list goes on. Most recently, we heard the argument from one of the cabinet secretary’s predecessors in an article in The Herald titled “Time to expose the lies behind the clamour for private prisons”.
At the moment, two of Scotland’s most important public services—the Scottish Prison Service and the police service—use an intermediary for monitoring. That is unhelpful in relation to something as important as community safety. I see no reason why those two services, jointly or individually, should not take charge of this important situation.
From recent press coverage, I know that the Scottish Government’s position is that anyone is able to bid for facilities—whether they relate to ferries, prisons or the police—but that is entirely what is wrong with the system. Such contracts should be based on public service and providing a service to the public, not on who can put together the best bid for a franchise or whatever.
I hope that the cabinet secretary will lend his support to my amendment, as that would be entirely in line with his party’s long-stated position on the issue, and I look forward to hearing his view.
I move amendment 90.
Daniel Johnson
I am far from reticent about extolling the virtues of the private sector. Prior to coming into Parliament, I worked in it for 15 years and ran my own business, but there are limits to the benefits of the private sector. We must be cautious about its role in public service provision generally, but particularly in the criminal justice sphere, given the serious nature of criminal justice matters.
John Finnie’s amendment 90 is well drafted for two reasons: one is practical and the other is a point of principle. On the practical matter, there is no doubt that the issues that we encountered when we examined HDC related to information sharing and how efficient that has been. Additional agencies or organisations being involved in that chain of information sharing—the sequence of information being passed from one end of the process to the other—will simply complicate that process. Therefore, I question whether it would be an advantage for an additional and unnecessary agency to be introduced, regardless whether it is a public sector or private sector organisation.
In addition, there is a point of principle in whether it is right for private companies to earn a profit from the incarceration of individuals and the monitoring of them thereafter. That question needs to be addressed. John Finnie made a good case by using the party of Government’s own record on the matter, and he made his arguments very well.
The only slight caveat that I add is that I am not entirely convinced that the addition of a third sector organisation or a registered charity would necessarily improve matters greatly, particularly in relation to practicality, but also in relation to the bidding system.
John Finnie
The amendment is about giving the option. My preference is that public sector organisations should be used, but the motivation of a third sector organisation or charity is not the creation of profit. Maximising profit for the shareholders is the obligation that is placed on present providers.
Daniel Johnson
I agree with that, but two other issues have been encountered with probation services that are delivered by third sector organisations south of the border. Organisational complexity and the bidding process, which has encouraged a race to the bottom, have meant that probation services south of the border are widely recognised as having been degraded.
I will support amendment 90 and I merely raise that point as a question mark and a point of detail. This is a well-stated amendment and I will support it.
Rona Mackay
I agree with amendment 90 but point out that, at the moment, we are still governed by EU law and procurement law and, as such, public and private bodies are entitled to tender. If we do not allow private bodies to tender, we might be in contravention of that law.
The Convener
Does John Finnie want to respond to that?
John Finnie
I simply say that this is a competent amendment or it would not be here.
Liam Kerr
I will vote against the amendment, which will not come as a surprise. The amendment starts from the flawed position that the public sector is automatically better and more efficient than the private sector. I just do not think that that stacks up.
Mr Finnie says that this is about who provides public service. To an extent, this is about who gives the best service and value for money. Daniel Johnson went on to suggest that, if something is so important, it must be publicly owned but, with respect, that argument is facile and it sacrifices the best delivery for dogma.
Daniel Johnson
My point was not that it would be better; it was about whether it is right for a private organisation to make a profit out of delivering a service such as this.
Liam Kerr
That suggests that Mr Johnson would sacrifice delivery for principle and that he puts ideology over the delivery of the best service to the public.
I will vote against the amendment. However, when Mr Finnie is summing up, I would be interested to hear about the cost of the proposal. I presume that, if we are looking to put the provisions into the legislation, cost will need to be a serious consideration. Where will that money come from? I also seek confirmation that Mr Finnie will support my amendment 76, which says that the proposals in the bill must be appropriately resourced before it can be passed.
Liam McArthur
I have reservations about the amendment. I hear what Daniel Johnson said about the practicalities and the principle, but I can point to examples of casework that have passed across my desk in the past 10 years that show that communications between entirely public service providers have fallen short of what they ought to be. Daniel Johnson’s point about the importance of communication is absolutely right. However, the assumption that somehow communication is overly complicated and falls down with the introduction of players from outwith the public sector, whether they are in the private sector or, indeed, the third sector, as provided for by John Finnie’s amendment, does not naturally follow.
In relation to the principle, I hear what John Finnie is saying. That is why the contracts for the procurement process had to be tightly defined. We need to ensure that the delivery against those contracts is absolutely right, whether it is done by the public, private or third sector. That is a discussion that I and John Finnie have had in the right spirit in relation to ferry contracts. I realise that those are of a different nature to the sort of contracts that we are dealing with here, but they still provide a lifeline to the communities that rely on them, so the principle holds. Concentrating on what it is that is procured and making sure that it is of the highest quality is ultimately the primary concern. With those comments, I confirm that I will not support Mr Finnie’s amendment.
Fulton MacGregor
We have still to hear from the cabinet secretary, but, at this stage, I am inclined to vote against the amendment, reluctantly. I say “reluctantly” because John Finnie has championed the issue throughout the evidence sessions and I agree with the principle. However, that is what it is: it is a principled amendment, and I am not sure that it would achieve the goal that Mr Finnie desires. I wonder whether it would be better placed in the policy context of the Government of the day. John Finnie is right to say that it is generally an SNP principle, but perhaps his amendment is more something for the policy of the Government of the day rather than something that should be in the bill.
I am interested to hear what the cabinet secretary has to say but, at this point, reluctantly, I am inclined to resist.
The Convener
I note the ideological argument that several members have put forward. For me, the crux of this amendment is that it could potentially preclude the very best people—who may very well be in the private sector as opposed to the public sector—to monitor someone effectively and efficiently to ensure public safety. For that reason, I cannot support it.
11:30Humza Yousaf
I thank John Finnie for lodging this amendment. I had a shiver up the spine when Liam McArthur and John Finnie started on about the ferries debate, which I remember only too well.
I agree with Fulton MacGregor’s remarks about understanding and having sympathy with the principle, but I will be urging members to resist amendment 90 for very good reasons.
Rona Mackay’s point should be given a fair bit of weight and not be dismissed, although I know that John Finnie was not dismissing it. What we can do in this area is governed by European Union procurement law. We do not know what will happen in the coming months and years, but at the moment we must treat economic operators “equally and without discrimination”. Any amendment may be considered outside competence if it is incompatible with any of the convention rights or EU law, and it could potentially be considered ultra vires and open to challenge.
Daniel Johnson
I am sure that that will remain the case only if the service is subject to a tendering process. Why does the Scottish Government not simply give the duty to the Scottish Prison Service or Police Scotland, so that it would not be subject to a tendering process and therefore not subject to European laws?
Humza Yousaf
That would be incredibly difficult to do. The ability to provide the service is currently not in the skill set of the Scottish Prison Service, which is why we ended up putting it out to tender for very good reason. I will come to that point in a second with regard to other public agencies or third sector organisations. I am not convinced that it would be the best use of the SPS’s time to put a tag on somebody’s ankle and monitor it, for example. There is potentially a role for the private sector or collaboration of third sector organisations, but it is not in the skill set of SPS.
John Finnie
Will the cabinet secretary take an intervention?
Humza Yousaf
I would like to make progress.
John Finnie
My point is pertinent.
Humza Yousaf
In that case, of course—if it is on that point.
John Finnie
My point is about the continuing role for the Scottish Prison Service. Its throughcare and aftercare, and the role that officers play in the community, are very positive. Is there any threat of that role being privatised?
Humza Yousaf
We are not talking about privatising throughcare support. Electronic monitoring is very different, for a variety of reasons. Throughcare—
John Finnie
What about aftercare?
Humza Yousaf
Throughcare can be an important element to complement electronic monitoring, but it is not the same thing.
Nothing currently precludes public or third sector providers from bidding to provide the monitoring service—as several members have said, including John Finnie. Indeed, some did so the last time that the service was put out to tender. The Scottish Government sets the standard of service and assesses bidders on a number of criteria, including their organisational values, which allows us to ensure that any provider operates with organisational values that are well aligned with the service that Scottish ministers want to see in Scotland. It is important to say that, for any provider that has tendered successfully and won a contract from the Scottish Government, we set in the contract the technical standards and rules about how data is held and managed. I hope that that provides some reassurance on safeguards that exist, irrespective of provider.
I note that that element of the service, whether provided by a private contractor or the public sector, was not a substantive part of the stage 1 evidence. It is important that any of our actions in this area are led by evidence, and it is important to separate out how the service is delivered from how it is sometimes reported, especially as the focus of reporting can often be providers in England and Wales, where the service is vastly different.
The electronic monitoring working group, whose work was the genesis for much of the bill, made a recommendation in this area that we should consider. It suggested that there could be improved integration of electronic monitoring. The bill has taken steps to address that, with stricter movement requirements being added to community payback orders imposed at the first disposal. That means that social work will be much more closely involved in the conversation.
I want to point out the importance of joint working. If we restrict how we contract for a service in the way that amendment 90 would require, not only would we risk not complying with our legal obligations, but such an approach might not allow for any joint working arrangements. I am not aware of anywhere in the world where this service is delivered without some element of private sector provision.
Daniel Johnson
My understanding is that, in most countries, the devices are procured from the private sector but administered by the public sector. We are on our own in getting the private sector to provide both elements. Will the cabinet secretary acknowledge that point?
Humza Yousaf
I will look into the detail of that and reflect on what Daniel Johnson says. He makes the point that there is some private sector involvement, and that is a fact that we cannot get away from. It is important to make the point—given that John Finnie was almost quoting previous SNP manifestos—that we have not built private prisons. It is a point of principle for us. However, we have to accept that, almost everywhere in the world, there is some element of private sector involvement in the justice system—exactly as Daniel Johnson, who will be supporting John Finnie’s amendment, has said.
As I have already said, I am not of the view that it is the best use of the time of a qualified social worker or throughcare support worker to travel out to put a tag on someone’s ankle. It is important that we bring together the respective strengths of public bodies and third sector operators in supporting the service in Scotland. I am not convinced that that is best done by requiring them to take on responsibility for monitoring the service.
On a more technical drafting point, the amendment prohibits the Scottish ministers from contracting with an individual who is not employed in the public sector. It arguably does not prohibit ministers from contracting with a private sector corporate body and may not therefore achieve the result intended by Mr Finnie.
I hope that Mr Finnie will not press amendment 90 for the reasons that I have provided, although I suspect that he will. If he does so, I ask the committee to reject the amendment.
John Finnie
I will be pressing amendment 90. I note what the cabinet secretary said about not having private prisons as a point of principle. I am sure that he would accept that the party of Government is not the only party allowed to hold points of principle.
One thing that is important here, as my colleague Daniel Johnson pointed out, is that the contract is an issue because it is put out to tender. Of course the private sector has some involvement in everything, because the police service does not make its own equipment and so on. It has a role—it is called capitalism and it is where we are. That is reality.
However, the amendment is competent, or we would not be discussing it. It is not helpful to talk about challenges—anything can be open to challenge. We are in a situation where information is increasingly available. We can see that and people are concerned about the growth of the amount of information that is held. It is a fact that people are particularly concerned when such information is held by private bodies.
Humza Yousaf
Can John Finnie give a specific Scottish example of private sector involvement being the problem with the service?
John Finnie
I share the cabinet secretary’s view that private sector involvement in the prison service is unhelpful. The Scottish Government is behind the Tory UK Government on the issue, because only yesterday, the UK Government took the contract away from Birmingham prison.
Humza Yousaf
We have never built a private prison. I do not accept that insinuation.
John Finnie
Your point of principle, cabinet secretary, was about whether there is a role for the private sector. Any limited company is obliged to maximise profit. Liam Kerr talks about where the money will come from, but the money is there already: the service is already being funded. The question is about who delivers it.
The Convener
The question is, that amendment 90 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Against
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 2, Against 7, Abstentions 0.
Amendment 90 disagreed to.
Section 10, as amended, agreed to.
Section 11—Designation of person to do monitoring
Amendments 38 to 45 moved—[Daniel Johnson].
The Convener
The question is, that amendments 38 to 45 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendments 38 to 45 agreed to.
Section 11, as amended, agreed to.
Section 12—Standard obligations put on offenders
Amendment 46 moved—[Daniel Johnson].
The Convener
The question is, that amendment 46 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 46 agreed to.
Amendment 91 moved—[Humza Yousaf]—and agreed to.
Amendments 47 to 51 moved—[Daniel Johnson].
The Convener
The question is, that amendments 47 to 51 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendments 47 to 51 agreed to.
The Convener
I suspend the meeting for five minutes, to allow for a comfort break.
11:42 Meeting suspended.11:48 On resuming—
The Convener
Amendment 73, in the name of Liam Kerr, is grouped with amendments 74 and 132.
Liam Kerr
Amendments 73 and 74 are very simple and clear. During stage 1, all committee members were concerned that, as the bill stands, offenders can cut off or tamper with their tag without that being considered a criminal offence. Amendment 73 would rectify that by making it an offence for an offender to cut off or tamper with their tag, regardless of the form of licence condition or community order to which the electronic monitoring conditions are attached.
My authority for lodging amendment 73 comes, in part, from Scottish Women’s Aid’s evidence to the committee at stage 1, when we heard that a criminal offence for such breaches is needed to create a credible deterrent. In addition, Victim Support Scotland, Community Justice Scotland and Positive Prison? Positive Futures talked about the need for a robust response to breaches of monitoring conditions. Amendment 73 would ensure that there was such a response.
Amendment 74 would simply ensure that the police would have powers of arrest if an offender cut off their tag, for example. Again, I lodged the amendment in response to evidence that was given to the committee. We heard from the police that there are grey areas with regard to their powers to apprehend. Amendment 74 will put things in black and white in the bill and will give the police the powers that we all heard they need.
I move amendment 73.
The Convener
Amendment 132, in my name, would cover a situation in which there had been a breach of an electronic monitoring order. In its stage 1 report, the committee recommended that breaches be swiftly investigated and, if found to be substantive rather than due to a technical fault, for example, responded to quickly and effectively. In particular, the committee noted the powerful evidence from Scottish Women’s Aid and others who expressed concern about how breaches will be responded to in real time in domestic abuse or sexual offence cases. Given the nature of such cases, if an offender has breached electronic monitoring conditions and has entered an exclusion zone, there is likely to be a real danger of something adverse happening very quickly.
Amendment 132 would ensure that, if there were a suspected breach of the terms of a disposal or other conditions, relevant bodies would be contacted. Police Scotland is specifically mentioned, but the Scottish ministers would have the scope to expand the approach to cover any pertinent body. I drafted the amendment in that way because the bill team advised that I could not focus on domestic abuse and sexual offence cases. Amendment 132 would therefore apply to all cases. I recognise that its scope could be too wide to be effective; it is a probing amendment to enable the cabinet secretary to clarify how the Government envisages that substantive, not technical, breaches relating to domestic abuse and sexual offence cases will be responded to in real time—for example, if someone has entered an exclusion zone. Such offences are quite different in nature from many other offences, and I would like to know how victims can be protected from potentially grave breaches.
Daniel Johnson
I will speak briefly in support of all the amendments in the group, albeit that I acknowledge that amendment 132, in the convener’s name, is a probing amendment.
Liam Kerr put it well: there needs to be a robust and swift response to breaches. When someone is released on a tag, that is a substitute for a prison term. They are out in society but on an electronic tag. That is a correct approach, but a breach of the conditions—particularly when it is a substantial breach such as cutting off a tag—has to be viewed as if it were a serious breach of prison conditions.
If someone cuts off a tag, that must be regarded with the same seriousness as their going over a prison wall. The situation is, in effect, comparable. I have had conversations about the need for an element of reasonableness in parts of the bill, and I am concerned about all breaches of all conditions being covered—particularly the technical breaches that the convener has just highlighted. What if someone breaches their curfew conditions by 10 minutes simply because their bus is late? Such matters need to be considered carefully, but Liam Kerr is right to frame the amendment in such stark terms. I will listen to what people have to say about the technical aspects.
The information-sharing provisions of amendment 132 are well stated and are very much in line with some of my own amendments on information sharing. The convener might not wish to press the amendment at this time, but I am interested in exploring the issues.
John Finnie
All three amendments in this group are interesting and, indeed, address what I thought was one of the most interesting pieces of evidence that we received during our scrutiny of the bill. As others have touched on, Pete White from Positive Prison? Positive Futures said that the counterbalance to what might be seen as a more liberal criminal justice regime is a robust response. I look forward to hearing what the cabinet secretary has to say on that, but I am always a wee bit wary in such circumstances, given that there will be occasions when discretion is appropriate. The person who makes the decisions must be empowered to do just that, and that will always be something of a challenge.
Fulton MacGregor
I agree with John Finnie. This was one of the more substantial issues to be raised at stage 1 and highlighted in our report, and Liam Kerr is right to lodge his amendments for debate. Perhaps Mr Kerr will address this concern when he sums up. On my initial reading, the main driver behind amendments 73 and 74 seems to be punishment instead of an attempt to address concerns about electronic tags being cut off. I am therefore not inclined to support his amendments just now, although he was certainly right to raise the issue. Perhaps it is more a matter for stage 3.
Liam McArthur
I appreciate that amendment 132 is essentially of a probing nature and that there is perhaps a bit of work to be done to finalise its wording. Nevertheless, it illustrates the benefit of lodging amendments at stage 2 to ensure that such things can be done ahead of stage 3.
Further revision of amendments 73 and 74 might well be necessary. I very much echo John Finnie’s point about our wanting a more liberal and progressive regime on the one hand but needing robust safeguards on the other if such a regime is to carry the confidence of the wider public. I will listen with interest to what the cabinet secretary has to say. I suspect that changes to the amendments will probably be required, but they serve a useful purpose in putting down a marker at stage 2.
The Convener
I forgot to state my support for the very robust approach that I think is needed in the event of a tag being cut off or tampered with. I, too, look forward to hearing what the cabinet secretary has to say.
Humza Yousaf
Convener, I thank you and Liam Kerr for lodging the amendments in this group. I recognise that amendment 132, in your name, is a probing amendment, but I will do my best to address some of the concerns that you have rightly highlighted. I also thought that Liam Kerr articulated well the intention behind amendments 73 and 74, particularly with regard to the well-founded fears that have been expressed by survivors of domestic abuse and, indeed, victims of a variety of offences. However, like the convener, we recognise the unique nature of domestic abuse offences, which have rightly been in the spotlight this week.
As I have said, I will do my best to address many of the concerns that have been raised. I am conscious of the very good intentions behind the amendments in this group, but we will not be able to support them, because of our concerns about, if nothing else, unintended consequences, which I will highlight in a second. It might also be the case that, when some of these amendments were lodged, members had not had sight of the Government’s amendments creating the new offence of remaining unlawfully at large and our wider amendments on home detention curfew. The committee might want to consider the amendments that we are discussing in that context.
12:00Amendment 73 would make it an offence to contravene the electronic monitoring requirements that are set out in sections 12(2) and 12(3) of the bill, being the duty to obey instructions on how to use and/or wear the tag and the duty to refrain from tampering with, damaging or destroying the tag. However, that offence would apply to all forms of electronic monitoring, whether imposed by a court alongside a community sentence or imposed by the Scottish ministers on early release from prison.
The amendment does not provide for any form of defence for an individual who contravenes the electronic monitoring requirement. An individual who had a reasonable excuse for cutting off a tag would still be committing an offence. That point has been raised by a number of members. Daniel Johnson asked what would happen if the bus turned up 10 minutes late. Amendment 73, as it is drafted, does not provide for any reasonable excuse for cutting off a tag.
Liam Kerr
What would the cabinet secretary see as a reasonable excuse for cutting off or tampering with a tag?
Humza Yousaf
I will come to that. There may be, for example, a medical reason why someone had to cut off a tag. They may have injured their leg so that the leg was bleeding from a wound exactly where the tag was. I think we would all agree that, if medical treatment had to take place and the tag had to be cut off, that would be a reasonable excuse. However, that would not be permitted under amendment 73. I accept that it would be an exceptional case, but the law must allow for such flexibilities and reasonable excuses.
Daniel Johnson
This is an important detail. Does the cabinet secretary acknowledge the argument that, when someone deliberately removes a tag with the intent of evading the conditions of an HDC, that should be an explicit offence? Will he consider a form of words that would make it an offence, albeit with conditions that, when someone has a reasonable belief that they will come to harm because they are tagged, that may be an excuse?
Humza Yousaf
I have touched on the point about having a reasonable excuse, and I hope that Daniel Johnson gives me time to develop the argument slightly. I am not convinced that that element alone should be an offence, and I will come to why that is. There are issues with creating hierarchies—there are unintended consequences—and the approach that the Government is taking on individuals being unlawfully at large is the best approach to allay the fears that exist.
Another issue with the drafting of amendment 73 is that the proposed offence would be triable only in summary proceedings, with a maximum sentence of 12 months imprisonment or a fine at level 5 on the standard scale, or both. If Parliament agrees, for the presumption against short sentences, to raise the length of a short sentence to 12 months, there would be a presumption against imprisonment for the new offence and the individual would be more likely to receive a fine. The new offence does not clarify what should happen if an individual cuts off their tag and receives a fine for breaching the underlying community sentence. An individual who cuts off their tag and therefore breaches their community sentence could, in the case of an RLO or a CPO, be fined by the court and the underlying order could continue to be in force. A further fine could be imposed for the new offence created by amendment 73, thereby enabling two separate financial punishments to be imposed on the individual for the same course of conduct.
Part of the rationale for not making cutting off a tag or a general breach of licence conditions a further offence is that there are already sanctions for those who cut off an electronic tag or otherwise breach the conditions of their licence or community sentence. An individual who breaches their licence conditions can be recalled to prison to serve the requisite part of their sentence. A short-term prisoner on HDC would be required to return to prison until their automatic release at the halfway stage. A long-term prisoner on HDC or parole would be likely to see their parole withdrawn and would be re-released only once the Parole Board for Scotland considered it appropriate. Currently, if an individual serving a community sentence cuts off an electronic tag or otherwise breaches the conditions of their licence, they can be returned to court and fined, and the terms of the underlying community sentence can also be varied in response. Alternatively, the court can revoke the community sentence and sentence the individual afresh, which could involve imposing a sentence of imprisonment.
The bill provides an electronic monitoring requirement that can be imposed in community sentences and licence conditions. The electronic monitoring requirement is that the individual must wear an electronic tag and refrain from damaging or tampering with the tag. The bill currently provides that a breach of the electronic monitoring requirement constitutes a breach of the underlying court order or the underlying licence conditions. That enables the breach provisions that have already been discussed for early release and community sentences to be triggered when an individual cuts off an electronic tag. The bill expressly provides that, if a breach of an underlying community sentence constitutes an offence, that offence will not be committed by breaching the EM requirement.
In addition, we have lodged a stage 2 amendment to make it an offence for an individual to remain unlawfully at large. In that respect, we agree with Liam Kerr that an additional punishment is required beyond the return of the individual to prison and the impact of that on their future release. The new offence provides that additional punishment. The offence also fulfils the recommendation that was made in October 2018 by Her Majesty’s inspectorate of constabulary for Scotland without further offences being required. An individual on licence who cuts off their tag will be recalled to prison and, if they fail to return timeously, they will be committing the offence of remaining unlawfully at large. An individual who is serving a community sentence and who cuts off their tag can be fined or imprisoned under existing legislation.
We propose to resist the amendment for the following reasons. The existing breach procedures for parole, HDC and temporary release already enable the immediate recall of the individual to prison. The existing breach procedures that are applicable to community sentences already enable the court to punish an individual who cuts off their tag. The new offence of cutting off a tag would sit alongside the existing punitive measures that are available to the court in relation to community sentences, which could result in the individual being fined twice over. The creation of an offence of remaining unlawfully at large reduces the need for the offence of cutting off a tag in the context of those released from prison on licence, and—this is an important point—the offence of remaining unlawfully at large would apply to all breaches of licence conditions, including the cutting off of a tag, when the individual was recalled and did not comply timeously. In addition, the offence of remaining unlawfully at large would, by definition, exclude community sentences and thereby side-step the need for a similar measure in relation to those orders.
There is a final, crucial point: if the offence were to be restricted to just cutting off or damaging the tag, we could be elevating the EM licence condition above all other conditions, even if those other conditions were more important in relation to protecting the public. For example, an individual staying in their house and cutting off the tag would be committing an offence, but an individual breaching a condition not to go near a school might not.
Daniel Johnson
I accept what you are saying, to some extent. However, we are dealing with electronic monitoring and it is the tag that makes those conditions possible. If you cut off the tag, you cut off the very thing that makes it possible for those conditions to be monitored. For that reason, it is of a more fundamental order.
Humza Yousaf
I take some exception to that, and refer you to the example that I gave. Under the proposal, someone who keeps their tag on and who has been told that a licence condition is that they should not go near a school, for very good reasons, might breach that condition but be deemed not to have committed an offence, whereas someone who cuts off their tag and sits in their house would be deemed to have committed an offence.
We can argue about which of those acts would be worse, or which would be a worse breach of a condition, but the point is that I do not disagree with the general intent behind what Liam Kerr is trying to do. My suggestion is that the offence of remaining unlawfully at large would cover all those potential breaches, including cutting off a tag. That is why it is a better approach than that of elevating one particular breach of licence—albeit a serious and important one—above others.
Amendment 74 provides a power of arrest when a constable suspects that an individual has committed the offence that is created in amendment 73. Amendment 74 does not specify whether that arrest can be effected with or without a warrant. The amendment is unnecessary, regardless of whether the amendment 73 offence remains in the bill. Section 1(1) of the Criminal Justice (Scotland) Act 2016 empowers a constable to
“arrest a person without a warrant if the constable has reasonable grounds for suspecting that the person has committed or is committing an offence.”
We therefore propose to resist amendment 74 on the ground that it duplicates existing legislation, thereby creating confusion as to which provision would apply in any given case.
John Finnie
Does the cabinet secretary acknowledge that that is not what we heard from the police? The police told us that they did not have such a power of arrest.
Humza Yousaf
We will try to ensure that our amendment introducing the offence of remaining unlawfully at large and further amendments give clarity on the powers of arrest that are and are not available. However, I am clear about the current powers. We have checked and double-checked that in relation to section 1(1) of the 2016 act. That is not to take away from the recommendations that were made by HMICS in its report.
Liam Kerr
I want to pick up on that point, because I share John Finnie’s concern. The committee heard clearly from officers that if, of an evening, they were to find somebody who they clearly felt was unlawfully at large, they would not have the power to arrest that person. I am paraphrasing, but that was certainly the evidence that I heard and that I believe the committee heard—officers do not have that power. The cabinet secretary seems to be suggesting that that is a misunderstanding on the part of the police. Is that correct?
Humza Yousaf
No, I am not suggesting that in the slightest. There is a difference between the powers of arrest when there is a suspected breach and the powers when a breach has been confirmed. That is a really important point.
Where the police need clarification, we are happy to provide that through amendments that we will bring forward. I am not convinced that Liam Kerr’s amendment 74, which is tied to amendment 73, is the right way to do that. I am happy to give those reassurances where we can with any amendments that we bring forward.
If an individual breaches a community sentence, the court has the power to issue a warrant for their arrest. If an individual breaches their licence conditions, they can be recalled to prison and, on recall, they are deemed to be unlawfully at large. An individual who is unlawfully at large can be arrested without a warrant, and a constable can obtain a warrant to enter and search premises to arrest an individual who is unlawfully at large. That latter power is being clarified in the bill. There are existing powers for a constable to arrest an individual who cuts off the electronic tag, and I think that that makes amendment 74 unnecessary.
Amendment 74 does not refer to the offence that is created in amendment 73. Accordingly, the amendments are not co-dependent, so I suppose that the rejection of one does not necessitate the rejection of the other. That being said, we recommend the rejection of both amendments, for the reasons that I have outlined.
I accept that amendment 132 is a probing amendment, but the points that the convener made are important nonetheless. The amendment would place an obligation on the designated person to report every suspected breach of the community sentence or licence conditions to the police, whether or not the designated person considered that the breach should be addressed by the police. An individual who is five minutes late for their home detention curfew would require to be reported to the police, even though the police would not act on that information unless the individual had been recalled. Similarly, an individual who is five minutes late for a restriction of liberty order curfew would require to be reported to the police, even though the police would have no interest in that case unless the court issues a warrant for the arrest of the individual.
All that said, the convener raises important points regarding the offence of domestic abuse. Issues of support and compliance with electronic monitoring were developed with partners as part of the EM user requirement working group. To give the convener some reassurance on that, Victim Support Scotland, Scottish Women’s Aid, Turning Point and Positive Prison? Positive Futures are all members of that group.
The drafting of amendment 132 would mean that the proposed new section would apply when the individual was suspected of having breached a section 3 disposal or section 7 licence conditions. There is no reference to an electronic monitoring requirement, so arguably the new section could capture any breach of a disposal or licence listed in section 3 or section 7.
The Convener
I understand that it is a flawed amendment—that is because it is a probing amendment. The substantial reason for raising the issue is to address domestic abuse and sexual offences because, with those offences more than with any other, if a tag is tampered with and the offender enters an exclusion zone, the likelihood is that that is being done with one purpose in mind and with the victim in mind, and that there will be an adverse consequence. How do we address that in the bill?
Humza Yousaf
I suspect that some of that will come down to the guidance that we produce on electronic monitoring. To return to the EM user requirement working group, Scottish Women’s Aid is on that group to try to address some of those concerns. The offence of remaining unlawfully at large will help to give an element of comfort. Draft updated guidance will be submitted to Social Work Scotland’s justice standing committee when the review is complete and will be shared with local authorities thereafter. The working group will make sure that the Government provides assurances.
12:15The Convener
If I understand the direction in which the cabinet secretary is heading, we would pass the legislation and then look at the guidance later, in the hope—and just the hope—that we would get it right. I do not think that that is good enough for the victims of domestic abuse or sexual offences, when we know that the legislation could be putting them in danger in real time. How can we address that issue in the bill, and can we include it in the bill at stage 3? The legislation may be inappropriate for those offences.
Humza Yousaf
I always work with members in advance of the various legislative stages to give as much reassurance as I can. However, I am not convinced that the bill is the appropriate place for those assurances. I may be proved wrong and I am open to persuasion in advance of stage 3. We will have conversations with organisations such as Scottish Women’s Aid and others to determine whether they have—
The Convener
The suggestion—
Humza Yousaf
If you let me finish the point, I will ask you to respond.
The Convener
Absolutely.
Humza Yousaf
We have given reassurances on the offence of remaining unlawfully at large. When we choose to adopt new technologies in electronic monitoring—be it global positioning systems or others—the EM user requirement working group will be consulted. However, I am open to working in advance of stage 3 to see whether we can give further reassurance to you and other members.
The Convener
The proposal was that domestic abuse and sexual offences should be looked on as categories in which, by the nature of the offence, there would be an automatic swift response by the police to investigate, attend and establish whether there might be a potential danger.
Humza Yousaf
Again, I am happy to look at the issue and to have that conversation. In some cases, breaches will be a matter for the courts and not for the police. That is the nature of the law, depending on the type of licence on which an offender is released. I am open to looking at your point about particular offences.
The Convener
Forgive me, but if we do not pass this legislation those offenders will be behind bars and, in those circumstances, there will be no threat to the groups that I am talking about. Passing the legislation now could put them in danger, and I am asking you to look at that issue at stage 3.
Humza Yousaf
I will happily look at that with you in advance of stage 3.
The Convener
Thank you. I invite Liam Kerr to wind up.
Liam Kerr
Thank you, convener. I thank members and the cabinet secretary for their very interesting contributions to the debate.
Fulton MacGregor was concerned that amendments 73 and 74, rather than being designed to address concerns, were punitive. I can reassure him that that is not correct; they directly address the evidence that the committee took and certain tragic events. I associate myself very much with some of Daniel Johnson’s comments on how seriously we should view the act of cutting off or tampering with a tag, and in particular with his characterisation of those actions as being as serious as going over a prison wall.
Fulton MacGregor
Nobody disputes that cutting off the tag is a serious action, and members generally agreed with the principle of Liam Kerr’s amendment 73. It may be an oversight, but if the main driver of the amendment is to address a concern, rather than to be punitive, why does it include nothing about individual circumstances such as those around health concerns that the cabinet secretary pointed out?
Liam Kerr
The fact that it is a very serious action is precisely why I raised Scottish Women’s Aid and the need for a credible deterrent. Positive Prison? Positive Futures has been mentioned several times, quite rightly, in the context of the need for a robust response.
To answer your question directly, I thought that John Finnie and Liam McArthur made some important points on individual circumstances. There will be occasions on which we need discretion, but, above all, we need a safe regime.
I understand the ethos behind the bill, but we need a robust counterbalance. In that regard, I turn to the cabinet secretary’s comments. I do not accept that my proposed approach is too punitive. We had a very interesting discussion about the Government’s amendment on the offence of remaining unlawfully at large; perhaps we will consider that in more detail later. I could support that as an alternative, but I do not want to, because I want amendments 73 and 74 to be agreed to. Amendment 122, which will apply to persons who are unlawfully at large, will apply only to home detention curfew, which is just one of the 10 disposal types that are listed in the bill. My concern about that is that we might be seen not to have learned the lessons from Craig McClelland’s murder, which Daniel Johnson raised. We must learn the lessons from that case to ensure that there is zero tolerance across the board.
I see the principle behind what the cabinet secretary is trying to do, but I think that the Government’s amendment 122 on the offence of remaining unlawfully at large, which we will debate at a later date, is insufficiently powerful. I understand that the proposed offence will be committed when the offender does not immediately return to custody once the licence is revoked. That is just not powerful enough.
Humza Yousaf
To clarify, the provision on remaining unlawfully at large does not apply just to HDC; it applies to parole and temporary release, too. Any breach of a licence condition will be looked at, with the result that somebody could be recalled. Why does Mr Kerr think that an individual breaching a condition such as going near a primary school when they should not is a lesser offence than cutting off a tag? Why does he want to create that hierarchy? Our proposed offence of remaining unlawfully at large will not create such a hierarchy and will rightly punish anybody who goes unlawfully at large.
Liam Kerr
I do not accept that what I propose would create a hierarchy. Daniel Johnson dealt with that point pretty well—I refer to what he said in his intervention.
Amendment 74 seeks to give a constable the power to arrest an offender in such circumstances. In my view, that power is needed. The Government’s offence of remaining unlawfully at large risks putting into the system a delay before the offender is brought back into custody. As we saw in the Craig McClelland case, any delay or inability to bring someone straight back into custody can have tragic and irreversible consequences, and I do not think that we should risk that. We need a robust power of the kind that amendments 73 and 74 would provide.
Without amendments 73 and 74, I see no guarantee that an offence will be committed if a tag is cut off. That is what my amendments will provide, and I encourage members to vote for them. I accept what the cabinet secretary has said, and I hear his concerns. However, I encourage members to vote for amendments 73 and 74. The cabinet secretary will be able to lodge amendments on defences at stage 3, once we have the power in place.
The Convener
I presume that you are pressing amendment 73.
Liam Kerr
I am.
The Convener
The question is, that amendment 73 be agreed to. Are we agreed?
Members: No.
For
Johnson, Daniel (Edinburgh Southern) (Lab)
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Against
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
The Convener
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 73 disagreed to.
Amendment 74 moved—[Liam Kerr].
The Convener
The question is, that amendment 74 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Against
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Abstentions
McArthur, Liam (Orkney Islands) (LD)
The Convener
The result of the division is: For 4, Against 4, Abstentions 1. I therefore use my casting vote in favour of the amendment.
Amendment 74 agreed to.
Amendment 92 moved—[Humza Yousaf]—and agreed to.
Section 12, as amended, agreed to.
Section 13—Deemed breach of disposal or conditions
Amendment 52 moved—[Daniel Johnson].
The Convener
The question is, that amendment 52 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 52 agreed to.
Liam Kerr
On a point of order, convener. Every time that Daniel Johnson moves his amendments—there are a significant number of them—I will oppose them. Is there some process by which we can avoid going through them all?
The Convener
If it helps, we will go only as far as amendment 53 today, given the time constraints and the fact that we have other items on the agenda. We must ensure that each amendment is given the fullest consideration and debating time, which is why I will finish this item of business following the committee’s decision on amendment 53. I hope that that solves your dilemma, Mr Kerr.
Amendment 53 moved—[Daniel Johnson].
The Convener
The question is, that amendment 53 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 53 agreed to.
The Convener
We will finish today’s consideration of amendments at stage 2 at that point. I thank the cabinet secretary for his attendance.
12:27 Meeting suspended.12:28 On resuming—
2 April 2019
Second meeting on amendments
Documents with the amendments considered at this meeting held on 23 April 2019:
Second meeting on amendments transcript
The Convener
Agenda item 3 is continued consideration of the Management of Offenders (Scotland) Bill at stage 2. I refer members to their copies of the bill, and to the marshalled list of amendments and the groupings.
I welcome back Humza Yousaf, the Cabinet Secretary for Justice, and his officials. For the avoidance of doubt, the officials are here to assist the cabinet secretary during stage 2 proceedings. They are not permitted to participate in the debate, which is why they do not have name plates.
At various parts of today’s meeting, we will be joined by other members who have lodged amendments. I welcome Lewis Macdonald, who is already in situ. We will now begin consideration of the amendments.
Section 13—Deemed breach of disposal or conditions
The Convener
Amendment 93, in the name of the cabinet secretary, is grouped with amendment 104. Amendment 93 pre-empts amendments 54 and 55 in the group called “Part 1 terminology: relevant person”. If amendment 93 is agreed to, I cannot call amendments 54 and 55.
Humza Yousaf
Amendments 93 and 104 are grouped as minor technical changes that are required as a result of amendment 118, which in turn extends Scottish ministers’ powers to recall a prisoner from home detention curfew. Amendment 118 inserts a new subsection into section 42 of the bill, amending section 17A of the Prisoners and Criminal Proceedings (Scotland) Act 1993, to provide that a prisoner can be recalled from HDC if Scottish ministers consider that to be expedient in the public interest.
Amendments 93 and 104 tidy up references to section 17A of the 1993 act and other parts of the bill.
I move amendment 93.
The Convener
The question is, that amendment 93 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 93 agreed to.
Section 13, as amended, agreed to.
After section 13
Amendment 132 not moved.
Section 14—Documentary evidence at breach hearings
Amendment 56 moved—[Daniel Johnson].
The Convener
The question is, that amendment 56 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 56 agreed to.
Amendment 57 moved—[Daniel Johnson].
The Convener
The question is, that amendment 57 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 57 agreed to.
Amendment 94 moved—[Humza Yousaf]—and agreed to.
The Convener
I remind members that, if amendment 95 is agreed to, I cannot call amendment 58 because of pre-emption.
Amendment 95 moved—[Humza Yousaf]—and agreed to.
Amendments 96 to 98 moved—[Humza Yousaf]—and agreed to.
The Convener
I remind members that, if amendment 99 is agreed to, I cannot call amendment 59 because of pre-emption.
Amendment 99 moved—[Humza Yousaf]—and agreed to.
Amendment 60 moved—[Daniel Johnson].
The Convener
The question is, that amendment 60 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 60 agreed to.
Amendment 100 moved—[Humza Yousaf]—and agreed to.
Section 14, as amended, agreed to.
Section 15—Procedure for making regulations
The Convener
Amendment 101, in the name of the cabinet secretary, is in a group on its own.
10:15Humza Yousaf
Amendment 101 changes the section 9 powers in the bill, which enable the Scottish ministers to make regulations in relation to the use of devices and information, to make them subject to the affirmative procedure. That was one of the recommendations in the Justice Committee’s stage 1 report.
The regulation-making power in section 9 empowers Scottish ministers to make provisions about the use of information obtained through monitoring, and expressly includes placing restrictions on the use or sharing of that information. Scottish ministers will be able to use the power to ensure that data is collected, retained, used and destroyed in accordance with data protection law.
I listened carefully to the Justice Committee’s views on the use of devices and information. I lodged the amendment in recognition of the significance of the section 9 powers, which we are content to make subject to the affirmative procedure.
The committee also recommended the affirmative procedure for regulations that are made under sections 4 and 7 of the bill. Those sections enable the Scottish ministers to extend electronic monitoring into other criminal court disposals such as bail, or other forms of early release. I do not think it necessary to use the affirmative procedure for such regulations, as their effect would be only to widen the discretion of the courts and ministers in relation to electronic monitoring. The bill does not enable the creation of new criminal court disposals or forms of early release. Rather, it sets out those disposals and forms of early release that can be electronically monitored at the discretion of the court or of Scottish ministers.
The powers in the bill ensure only that, where a movement or consumption restriction can be imposed by a court or the Scottish ministers if it is deemed appropriate to do so, the electronic monitoring regime can be extended to include that restriction. For those reasons, I do not think that changes are required to the procedure for regulations made under sections 4 and 7, but I have lodged amendment 101 in relation to regulations made under section 9 on the use of devices and information.
I move amendment 101.
Amendment 101 agreed to.
Section 15, as amended, agreed to.
Section 16—Additional and consequential provisions
Amendment 61 moved—[Daniel Johnson].
The Convener
The question is, that amendment 61 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 61 agreed to.
Amendment 62 moved—[Daniel Johnson].
The Convener
The question is, that amendment 62 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Against
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
The Convener
The result of the division is: For 7, Against 2, Abstentions 0.
Amendment 62 agreed to.
Section 16, as amended, agreed to.
Schedule 1—Court orders and electronic monitoring
The Convener
Amendment 103, in the name of the cabinet secretary, is in a group on its own.
Humza Yousaf
When an individual is convicted on indictment and is sentenced to imprisonment for less than four years, the court may impose a supervised release order—SRO—on the individual when it considers that it is necessary to protect the public from serious harm from the individual on their release. The SRO is imposed under section 209 of the Criminal Procedure (Scotland) Act 1995 and provides a period of supervision on licence for short-term prisoners who would otherwise be released into the community unconditionally. The SRO commences on the prisoner’s release, cannot exceed 12 months and cannot extend past the sentence end date.
However, a short-term prisoner could become a long-term prisoner if they received a consecutive or partially concurrent sentence and those separate sentences formed a single term of four years or more. Therefore, although SROs are imposed only on prisoners who are sentenced to short-term sentences, a short-term prisoner with an SRO could become a long-term prisoner with an SRO at a later date by virtue of receiving additional prison sentences.
Following changes to automatic early release that were made in February 2016, a long-term prisoner who is subject to a 12-month SRO that is imposed for a constituent part of their single-term sentence could be released on licence for only six months. In those circumstances, the 12-month SRO would extend for six months beyond the sentence end date. That would result in an inadvertent breach of the requirement in section 209 of the Criminal Procedure (Scotland) Act 1995 that an SRO cannot extend beyond the sentence end date. As long-term prisoners are always released on licence, there appears to be no need for an SRO to remain in place when a short-term prisoner becomes a long-term prisoner by virtue of the rules on single terming.
For the reasons that I have set out, I have lodged amendment 103, which will allow an SRO to fall when a prisoner becomes a long-term prisoner through the operation of the rules on single terming of prison sentences, and I ask the committee to support it.
I move amendment 103.
The Convener
Do members have any questions or comments?
Daniel Johnson (Edinburgh Southern) (Lab)
I have a brief technical query. I understand what the cabinet secretary said, but it is important for rehabilitation that early release remains a possibility for long-term prisoners. I want to clarify that amendment 103 will not remove that possibility and that it is merely about technicalities to do with what form that will take for long-term prisoners. Is that correct?
Humza Yousaf
That understanding is correct. Although changes were made to automatic early release, a long-term prisoner will still have access to all the rehabilitation programmes that are available in the prison as well as the chance to progress through the normal routes to release on parole and so forth. Amendment 103 does not seek to change any of that. It is a technical amendment that needs to be made for the reasons that I mentioned.
Amendment 103 agreed to.
Amendment 104 moved—[Humza Yousaf]—and agreed to.
Schedule 1, as amended, agreed to.
After section 16
The Convener
I call amendment 63, in the name of Daniel Johnson.
Daniel Johnson
Not moved.
Liam Kerr (North East Scotland) (Con)
I do not understand the process, convener. Can I move the amendment?
The Convener
Yes.
Amendment 63 moved—[Liam Kerr].
The Convener
The question is, that amendment 63 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Against
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
The Convener
The result of the division is: For 2, Against 7, Abstentions 0.
Amendment 63 disagreed to.
The Convener
Amendment 1, in the name of Lewis Macdonald, is grouped with amendment 102.
Lewis Macdonald (North East Scotland) (Lab)
I am very grateful that amendments 1 and 102 have been grouped together, because they serve the same purpose. Amendment 1 seeks to make completion of a declaration of income form mandatory, and amendment 102 seeks to subsume deduction of benefit orders into enforcement orders. In both cases, the purpose is to make the system work as it is intended to work and to ensure that, when fines are imposed by the courts, they are collected and the courts have the means to do that.
You might recall that, last year, I made a submission in relation to the bill that focused on the content of amendment 1—the declaration of income form. However, as I pursued the matter, it quickly became clear that the fact that benefit deductions were separate from other enforcement mechanisms was also a fault and a weakness in the current system. I am grateful to the cabinet secretary for discussing the matter with me some weeks ago and for writing to me on it last week.
Amendments 1 and 102 were prompted by a very ordinary, everyday case in Aberdeen that involved Michelle Gavin, a woman who was hard working but without money in the bank, if I can put it that way. She was the victim of a minor offence: an intruder broke her garden fence when avoiding a conversation with a police officer. Rather than prosecute for an offence, the procurator fiscal offered him a compensation order whereby he would pay Michelle Gavin the £400 to fix her fence. In the three years since the order was made, the individual has paid £7.50. The court service has confirmed that it is not able to replace the penalty with an alternative one, such as compensation from the court that it could recover from the offender, and that it has no means to enforce the order, because it cannot require the individual to complete a declaration of income form, so it does not know his income.
Michelle Gavin is still £392.50 out of pocket. The individual has been subject to warrants on five occasions, and he has been held overnight on remand and has appeared in court a number of times. He made a small payment on one occasion, but, after all the other appearances in court in relation to this very minor matter, when he was offered and accepted opportunities to pay over a period of time, he failed to do so. In such situations, the courts need the ability to require people who have been found guilty of an offence or who have accepted an offer of a compensation order as an alternative to prosecution to pay up or, as a very minimum, to provide the information that is needed by the courts to pursue the matter.
Although both amendments are different in form, their essential purpose is the same. There is no dispute that the system has a weakness that needs to be addressed—that appears to be universally accepted. A Scottish Government report that was published in 2011 summed up cases like that of Michelle Gavin very well:
“There is still some ‘churn’ (in the system) ... in which non-payment is accompanied by limited information about defaulters, who are then cited to court, fail to appear, have a warrant issued, are given more time to pay, do not pay, are cited back to court, fail to appear, and so on. Improving access to information and therefore the ability of FEOs”—
fines enforcement officers—
“to pursue defaulters effectively could reduce this churn and limit the input of police and courts, improve the speed of fine payment and enforcement and potentially reduce the costs associated with enforcement whilst increasing fine payment and thus the credibility of the fine.”
Therefore, the proposal to amend the law is a win-win. There would be no difference in the penalty that would be imposed on a person who was found guilty of an offence or who accepted a compensation order, but there would be more prospect of the money eventually being paid. That would make an enormous difference for somebody like Michelle Gavin, and it would be positive for many other victims of crime.
For those who become entangled in the courts because they have committed an offence, there would be much greater clarity about the consequences of a fine being imposed. During 2017-18, there were 48,000 court citations for the non-payment of fines for compensation, and 21,000 arrest warrants were issued. A vast amount of public resource is being used to no particular purpose. It would be far better used in actively securing payment according to the letter of the law, which is what the amendments are intended to achieve.
I move amendment 1.
Liam Kerr
I am grateful to Lewis Macdonald for his sensible explanation, and I would like to vote for the amendments. For clarity and reassurance, I ask whether amendment 1 is about means testing of fines.
The Convener
Lewis Macdonald can answer that question.
Lewis Macdonald
I am happy to reply directly that the amendment is not about means testing of fines. It would not alter the position of a person who was convicted and who accepted a compensation order other than that they would have to complete the declaration of income form, as the amendment says. At the moment, they are asked to complete the declaration in those instances but are not required to do so. In very many cases, they do not do so, and the courts are unable to proceed further.
10:30Liam McArthur (Orkney Islands) (LD)
I, too, thank Lewis Macdonald not just for his explanation this morning but for his helpful written note. I recognise that the amendments build on a submission that he made at stage 1, but I have anxieties about the lack of evidence at stage 1 on an issue that seems, from the figures that Lewis Macdonald quoted, to be part of a wider picture that should give all of us cause for concern.
My anxiety is more about creating a requirement from which there is no exemption for having a reasonable excuse. Amendment 1 would criminalise the failure to submit a declaration of income form and would impose a fine for that. In some circumstances, that could exacerbate the situation and accelerate a downward spiral of financial difficulties.
Lewis Macdonald set out the position clearly and illustrated it with a case in which I do not underestimate the frustrations for the individual who is involved. The issue is part of a wider question, and I would feel more comfortable in addressing it in the round by taking evidence from a number of stakeholders. However, it has been helpful to air the issue in the context of the bill and I will listen carefully to the cabinet secretary’s response.
Daniel Johnson
I will speak briefly in support of the amendments. We need to recognise that people normally pursue such claims through the courts at the end of a prolonged period of stress and difficulty. We can understand why, if they fail to get the result that they wanted purely because a form was not filled in correctly, that causes not just frustration but a great deal of mistrust of and disappointment in the system. The proposal is sensible and would mean that a simple bit of bureaucracy would not stop the courts seeing through the process that they had been asked to undertake.
More important, although I well understand the points that Liam McArthur made, the impact of a fine on an individual should be considered when the judgment is made. Lewis Macdonald’s proposal would simply ensure that judgments and compensation awards could be seen through once they had been made. I fully accept Liam McArthur’s points about the impacts, but decisions in relation to them should be taken when the judgment is made.
For those reasons, I urge members to support the amendments, which would ensure that the processes are robust and do what they are intended to do.
Fulton MacGregor
I thank Lewis Macdonald for presenting his case and representing his constituent in such an articulate manner. However, like Liam McArthur, I have concerns about amendment 1. Before I could vote for it, I would need more information about its impact on the robust process that is in place to divert people from prosecution, which has cross-party support.
Nobody would disagree that there was an injustice in the example that Lewis Macdonald set out or that there is churn in the system, but the proposal needs to be looked at in the overall context. I would worry about introducing such a proposal at this point, so I am inclined to reject it, although I will listen to what the cabinet secretary says.
Rona Mackay (Strathkelvin and Bearsden) (SNP)
Like Fulton MacGregor, I have reservations about the amendments. We did not take evidence on the issue, so I do not feel that I know too much about it. I do not see the logic in fining people for the non-payment of a fine—in piling another fine on top of a fine. I agree that there is a problem, which was well described, but I do not see the logic in the approach.
John Finnie (Highlands and Islands) (Green)
I recall Mr Macdonald telling this story before, and I have to say that I find it deeply frustrating. As has been said, one would hope that diversion from prosecution would be seen in a positive light, but the figures are clearly unacceptable.
I remain to be persuaded that what is proposed is the answer, because I do not know whether it is simply piling another list on to a charge sheet that will just be ignored anyway. Clearly, we cannot have a situation in which many people, including people around this table, who are encouraging alternatives to custodial sentences, are being discredited. As others are, I am very keen to hear what the cabinet secretary has to say. I do not expect him to say that he thinks that the status quo is acceptable, but if what is suggested is not the answer, perhaps he will outline what the answer could be.
The Convener
I think that the amendments are eminently sensible. I do not think that it is just that, having accepted a compensation order, the person should refuse to fill in a declaration form—not least because of the churn that that causes in court, the costs involved and the fact that a victim can, such as in the case that Lewis Macdonald highlighted, be left having received no payment three years later. For those reasons, I am absolutely minded to support the amendments.
Humza Yousaf
I thank Lewis Macdonald for articulating well his reasons for lodging the amendments, and for his consistent interest in the issue—not only from the side of the table at which he is sitting now, but when he sat on this side of the table during the time when his party was in government. As has already been articulated this morning, we all have a joint interest in ensuring that the fines system will work better than it does at the moment.
I will try to address some of the points that have been made. A number of committee members have expressed reservations about the amendments in the name of Lewis Macdonald. I have reservations for many of the same reasons—in particular, the lack of an evidence base on whether this course of action is working. That said, I realise that committee members including John Finnie, who spoke just a moment ago, have challenged the Government to say what might work, if what is being proposed is not the answer. I will try to address both points. I think that it is hugely important that I set the context, before I do that.
Fine collection rates in Scotland are very high. At the end of February, the Scottish Courts and Tribunals Service released figures showing that 89 per cent of the value of sheriff court and justice of the peace court fines that were imposed in the three years between 2015 and 2018 either had been paid or were on track to be paid.
The remainder will, of course, be a hard nut to crack. I appreciate that Lewis Macdonald is trying to fix that situation through his amendments, but I am not convinced that amendment 1 is the best way of doing so. As others are, I am concerned about the circularity of creating a new offence and attaching the penalty of a fine where the individuals concerned have already demonstrated failure to engage with fines enforcement officers. Liam McArthur rightly asked about the evidence that shows that the approach would work. Our sense that the offence would be likely to be used but little comes from the fact that in England and Wales it is not used to the extent that people might think it would be used, and from experience there that suggests that the declaration of income form is not helpful at all.
In any event, there are technical issues with the drafting of amendment 1—the two most important being the lack of a deadline for filling in the form and the lack of provisions with regard to the person having a reasonable excuse. The lack of a deadline would make it impossible to know when the offence was actually committed, and the lack of provisions on having a reasonable excuse would make it a strict liability offence. I am extremely reluctant to take that approach, because people can fail to receive notice through no fault of their own, or might have perfectly good reasons for non-compliance, including serious illness, injury and so on.
There are other more technical difficulties with amendment 1 that I can discuss if the committee so wishes, but—I say this is in direct response to John Finnie—the Government will be working on arrangements that will make it unnecessary to seek information through declaration of income forms. Instead, it will be possible for the courts service to obtain relevant information directly from the Department for Work and Pensions and from Her Majesty’s Revenue and Customs. The service has been seeking that power for some time, but reserved legislation was necessary, and that gap has now been addressed by the coming into effect of the Digital Economy Act 2017. Powers in that act enable information to be shared between public bodies for the purposes of taking action on debt that is owed to, and on fraud against, a public authority.
If they are approved, the regulations that we are planning will enable Scottish bodies to move towards using the debt and fraud powers. We plan to begin drafting, consultation on and scrutiny of the regulations in the next few months, with a view to laying draft regulations before the Scottish Parliament, where they will be subject to affirmative procedure, during 2019.
If the regulations are approved, the Scottish Courts and Tribunals Service will be able to take the necessary steps towards developing a data-sharing arrangement with the DWP and HMRC. Directly obtaining information from the DWP and HMRC would be a more effective way of dealing with the issue, without creating another circular criminal offence, particularly for individuals who have already proved themselves to be reluctant to engage with the courts service.
Given that that is a better way of improving the fines enforcement system, and given the difficulties that I have explained in respect of Mr Macdonald’s amendment 1, I hope that he will not press it. If he does so, I will ask the committee to reject it.
I have concerns about both the content of amendment 102 and its legislative competence. On drafting difficulties, there are existing regulations that have been made under section 24(1)(a) of the Criminal Justice Act 1991: the Fines (Deductions from Income Support) Regulations 1992. Those regulations already provide that the court may, after making inquiry as to an offender’s means,
“apply to the Secretary of State asking him to deduct sums from”
the relevant benefit, at any time where a fine has been imposed.
Given that the courts already have that power, I am not clear what the purpose is of re-stating it through amendment 102. Similarly, proposed subsection (2) in the amendment does not seem to add anything to the existing powers in section 226E of the Criminal Procedure (Scotland) Act 1995, which already gives the fines enforcement officer the power to
“request the relevant court to make an application”.
Deduction from benefits for the purpose of meeting an individual’s debts are explicitly reserved. The 1992 regulations on that topic were made and subsequently amended by the UK Government. The application is to the UK secretary of state. If amendment 102 were to be interpreted as a restriction on a court’s ability to apply for a deduction from benefits order under the 1992 regulations, it might relate to reserved matters, which could lead to a vires challenge to the legislation as a whole. Therefore, we cannot support amendment 102.
I hope that Mr Macdonald will not move amendment 102, for reasons relating to competence and its content. If he moves amendment 102, I will ask members not to support it, should it be pushed to a vote.
The Convener
Before I bring in Lewis Macdonald, I would like to clarify a point with the cabinet secretary. You mentioned that the Digital Economy Act 2017 will allow for the relevant information from public bodies to be provided. However, if a person had private income, would that be covered?
Humza Yousaf
I do not think that that would be covered by information that is held by the DWP or HMRC. However, information on the tax that the person pays and so on could be received from HMRC, so that might cover that side of their income.
The Convener
It would be clearer if the person declared all their earnings in a declaration of income form.
Humza Yousaf
As I have said already, we have to understand the nut that we are trying to crack. I am not convinced that that would be the best approach, because of the circularity argument. The point has been made by several members—I agree with it—that piling another offence and fine on someone who has already shown reluctance to pay is not the way to address the problem that has been well articulated by Lewis Macdonald and others.
Lewis Macdonald
I have listened carefully to the cabinet secretary. His comments reflect what he said in his letter to me last week, which I acknowledge.
Amendment 1 would create a mechanism that would require a person who was before a court to provide information that the court requires. I welcome the steps that the cabinet secretary has mentioned, which would focus on finding another mechanism to do the same thing, from the other end.
The convener’s question was sound. The measures that the cabinet secretary intends to pursue and to put in place in this calendar year would be helpful in enabling public bodies to seek from other public bodies information about benefits and other income, and they are welcome, but we need belt and braces. We need the measures in relation to public bodies that the cabinet secretary intends to implement, and we need the measures that Parliament has the opportunity to take forward in relation to individuals. That seems to me to be a sensible way to proceed. Although I welcome what the cabinet secretary said, I do not think that it precludes our ability to gain the advantages that would come from taking another approach at the same time.
10:45Rona Mackay, the cabinet secretary and others asked whether the proposal could create a circular offence, with people being fined for non-payment of fines. I think that, in practical terms, when a court of law deals with minor offences and a declaration of income form is put before a person, either their lawyer says to them, “You don’t have to fill that in,” and they do not fill it in, or the lawyer says to them, “You have to fill that in,” and they fill it in. That is the reality on the ground. I accept the cabinet secretary’s point that the final version of the law ought to provide a deadline and provide for a reasonable excuse in order to avoid perverse and unintended consequences. If the committee agrees to amendments 1 and 102, I am sure that the cabinet secretary will lodge amendments on those specific points in order to ensure that the law works as intended. I hope that that will be his approach.
I understand the questions that members have raised around whether we have enough evidence about the impact on the system. I think that it is sufficient to go back to the views of the court, the sheriff clerks and the SCTS in relation to the case that I mentioned earlier. The SCTS says that, at this time, there are no further sanctions available to the fines enforcement team for the penalty. In order to make arrestment of income or benefits, the offender must first provide the court with information regarding his income, which he has failed to provide. The offender is not legally obliged to provide that information to the court. That is the view of the SCTS. It would love that individual case to be resolved, along with many thousands of cases like it, but it is powerless to do so under the current provisions.
I am asking the Government to provide the SCTS with an additional power that will enable it to carry out the duties that it is seeking to carry out. I know that those who are involved in the particular case that I mentioned would welcome that power, as would others in the SCTS.
The cabinet secretary expressed concern about whether amendment 102 is at risk of breaching vires, entering into reserved areas or limiting the ability of the court to apply the existing law. Again, the practical reality is that the courts can seek deductions from benefits by making an application in the way that the cabinet secretary has described. The problem is that, currently, that has to be done separately from other fines enforcement action, which means that it doubles the financial and administrative burden on those who seek to enforce fines. That is not an effective and efficient procedure.
Amendment 102, although it is less central than amendment 1, would certainly improve the efficiency of the system. I therefore wish for the committee to pass amendments 1 and 102. If the cabinet secretary’s concerns around the technical aspects of amendment 102 are well founded, I am sure that he will, if the committee passes the amendment today, come back at stage 3 with appropriate amendments that will ensure that the amendment works as intended. It is simply meant to make it easier for the courts to do their jobs, and for fines enforcement to be carried out.
The Convener
The question is, that amendment 1 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Johnson, Daniel (Edinburgh Southern) (Lab)
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Against
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
The Convener
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 1 disagreed to.
Amendment 102 moved—[Lewis Macdonald].
The Convener
The question is, that amendment 102 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Johnson, Daniel (Edinburgh Southern) (Lab)
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Against
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
The Convener
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 102 disagreed to.
Sections 17 to 32 agreed to.
After section 32
The Convener
Amendment 105, in the name of the cabinet secretary, is grouped with amendments 106 to 110.
Humza Yousaf
Amendments 105 to 108 will make new provision in part 2 of the bill, which relates to disclosure of convictions. Stakeholders and the committee have generally welcomed the provisions in part 2 as a sensible and progressive reform to the system of basic disclosure. However, some stakeholders suggested the reforms could go further in one specific area.
As members will be aware, changes that will be introduced through the bill will result in a disclosure period being attached to custodial sentences of up to and including 48 months. That means that a person who receives such a sentence could, at some future date, know that their conviction has become spent. The bill will increase that threshold from 30 months. While welcoming the reform, some stakeholders expressed concern that that will still mean that people who receive sentences of more than 48 months will be left facing a lifetime of disclosure.
It is clearly the case that for a person to receive a sentence of more than 48 months, a serious offence must have been committed. However, a system that does not even permit the possibility of not needing to disclose under basic disclosure seems to be disproportionate. I emphasise the term “basic disclosure”. We are not looking to change higher-level disclosure through the bill.
Amendments 105 to 108 provide for an enabling power for Scottish ministers to lay regulations that would, in effect, create an independent review mechanism for certain sentences that are longer than 48 months. Not everyone who receives a sentence of longer than 48 months will be able to apply for a review. Amendment 105 provides that a person who is serving a life sentence will not be able to seek a review because that is not one of the currently excluded sentences that are mentioned as a relevant sentence for the purposes of review, in proposed new subsection (3).
Amendment 105 also provides that a person who is subject to sex offender notification requirements would not be able to seek a review.
It is important to stress that nothing in the amendments directly affects the operation of higher-level disclosure. As members will be aware, that system is based on the offence that was committed rather than on the sentence that was received: no changes will be made to higher-level disclosure by the amendments.
To give more detail, I point out that amendment 105 provides for certain matters relating to the review process, including setting the time periods during which a person can seek review. A person who has been convicted and has received a sentence of longer than 48 months when they were aged 18 or older will be able to apply for a review six years after the end of their sentence. A person who has received, say, a seven-year sentence will be able to apply 13 years after being convicted: that is, after the seven-year sentence and the six-year buffer period.
A person who has been convicted and has received a sentence of greater than 48 months when they were aged under 18 can apply three years after the end of their sentence, so someone who receives, say, a five-year sentence will be able to apply eight years after being convicted: that is, after the five-year sentence and the three-year buffer period.
Amendment 106 gives certain general details of the independent review process that may be provided for in regulations, including the process for making an application, fees payable, how applications will be determined and a number of other matters. Amendment 106 also provides that any consequential changes that might be needed to the operation of higher-level disclosure can be made through regulations.
Amendment 107 provides an enabling power that will allow Scottish ministers to adjust either the age at which different buffer periods apply, the length of buffer periods, or both, which are found in amendment 105. That flexibility will ensure that future changes can be made through secondary legislation if, for example, different buffer periods are considered to be appropriate in the future.
Amendment 108 provides that regulations that are made under amendment 105 and amendment 107 will be subject to affirmative procedure.
Organisations including the Howard League for Penal Reform in Scotland and the Scottish centre for crime and justice research called for steps to be taken to help those who receive longer sentences by allowing their convictions to be considered to be spent at some future date. The enabling powers will allow the Scottish Government to propose a future scheme, for full scrutiny by the Scottish Parliament through affirmative procedure, to allow exactly that.
I ask members to support amendments 105 to 108.
Amendments 109 and 110 are technical amendments that will make minor changes with no policy impact.
I move amendment 105.
The Convener
I note that the cabinet secretary makes it clear that the amendments refer to basic disclosure. We can take some comfort from the fact that the regulations will be laid under the affirmative procedure, so that there will be transparency when we come to debate the issue.
Amendment 105 agreed to.
Amendments 106 to 108 moved—[Humza Yousaf]—and agreed to.
Sections 33 and 34 agreed to.
Schedule 2—Rehabilitation of Offenders Act 1974
Amendments 109 and 110 moved—[Humza Yousaf]—and agreed to.
Schedule 2, as amended, agreed to.
Sections 35 and 36 agreed to.
Section 37—Appointment to be for fixed period
The Convener
Amendment 111, in the name of the cabinet secretary, is grouped with amendments 112, 113 and 124 to 127.
Humza Yousaf
Amendment 111 is provided for consistency and limits the extent of the amendment in section 37 so that the reference to “instrument of appointment” in the process of appointment to membership of the Parole Board for Scotland is no longer deleted. That is useful in anticipation of amendment 112.
Amendment 112 allows for the instrument of appointment to be annotated and reissued so as to show that the member is reappointed if and when that occurs by virtue of section 38. That is for completeness in the administration of the process of reappointment to the Parole Board.
Amendment 113 is a minor drafting amendment. The sense of the wording is better stated as inclusive, although no change in effect results.
Amendments 124 and 125 are reordering amendments. Sections 44 and 45 are moved to the top of part 3 in order to accommodate new provisions while leaving the part to unfold in logical order.
Amendment 126 will change the oversight body concerning the appointment of Parole Board members. Section 38 amends the current appointment procedure for the Parole Board and will provide that a Parole Board member can continue in office on a five-year rolling basis. Reappointment will continue in that way until the person reaches the age of retirement, provided that they meet the terms of reappointment and they are not for some reason removed from office.
An appointment to the Parole Board is a public appointment in Scotland, and the process is currently governed by the Public Appointments and Public Bodies etc (Scotland) Act 2003. The Parole Board falls under the remit of the Commissioner for Ethical Standards in Public Life in Scotland, who monitors how people are appointed to the boards of specified public bodies. At present, Parole Board appointments are governed by the code of practice that is set by the commissioner, which provides that a member’s term of office must be no more than eight years in total. Section 38 will provide that appointments to the Parole Board can continue beyond eight years, which will ultimately put the Parole Board outwith the parameters of the commissioner’s code. Therefore, amendment 126 removes the Parole Board for Scotland from the Public Appointments and Public Bodies etc (Scotland) Act 2003 and from the remit of the commissioner’s code of practice.
However, to ensure that independent oversight is continued and to bring Parole Board appointments into line with appointments to other tribunals, amendment 126 also amends section 10 of the Judiciary and Courts (Scotland) Act 2008 to add the Parole Board to the remit of the Judicial Appointments Board for Scotland. That will result in the Judicial Appointments Board becoming the oversight body for the appointment of members to the Parole Board. To give the committee some reassurance, I point out that the Parole Board is content with the change.
Amendment 127 will change the long title of the bill in the light of the various changes that I am proposing to part 3. That is a technical change for the sake of continuing accuracy.
I move amendment 111.
Amendment 111 agreed to.
Section 37, as amended, agreed to.
Section 38
Amendments 112 and 113 moved—[Humza Yousaf]—and agreed to.
Section 38, as amended, agreed to.
Section 39 agreed to.
Before section 40
11:00The Convener
Amendment 114, in the name of the cabinet secretary, is in a group on its own.
Humza Yousaf
This amendment to section 26C of the Prisoners and Criminal Proceedings (Scotland) Act 1993 is required to address a minor issue in the legislative provisions for releasing prisoners in order to benefit their reintegration into the community. Section 2 of the Prisoners (Control of Release) (Scotland) Act 2015 inserted section 26C into the 1993 act to allow the Scottish ministers to release a person up to two days early if that would be beneficial for their reintegration into the community.
The legislation that was previously passed by Parliament provides that a release date can be brought forward by two days. That wording creates a potential difficulty when a prisoner is to be released on a Monday when a public holiday such as Christmas day or boxing day falls immediately thereafter, as was the case on Christmas eve in 2018. Christmas eve is not a public holiday but there is limited service provision on that day and no service provision for two days thereafter. In those circumstances, releasing a prisoner two days early would not assist the prisoner, as they would be released at the weekend, when vital services are closed.
The Scottish Prison Service can liaise with local authorities and other service providers to ensure that services are in place instead of utilising the early release provision. Indeed, that approach was taken by the SPS on Christmas eve and hogmanay in 2018. The combination of weekends and public holidays that would cause the issue is not expected to occur again until 2029. However, if we are good at nothing else, the Scottish Government is good at forward planning.
We are taking this legislative opportunity to amend section 26C to provide that a release date can be brought forward by two working days. That would enable prisoners who would otherwise be released on a Monday when limited services are available to be released on the preceding Friday.
The change will bring the effect of the legislation into line with the original policy intent and will provide the flexibility to time release to benefit reintegration and access to services.
I move amendment 114.
John Finnie
I support the amendment. The cabinet secretary used the phrase “the original policy intent”, and I suspect that this issue was an unintended consequence of the previous, well-meant move. Although it will be some time before it will need to be applied, if it covers the committee’s concerns about having in place all the mechanisms for an effective release, this pragmatic approach is the way ahead and I am supportive of it.
Liam McArthur
Like John Finnie, I welcome the addressing of what is clearly an anomaly. Later on, we will come to amendments that address some of the committee’s concerns about the measures that are taken to maximise the success of reintegration into the community. How those amendments will fall remains to be seen, but addressing the current anomaly through this amendment is very welcome, and I thank the cabinet secretary for lodging it.
Amendment 114 agreed to.
The Convener
Amendment 115, in the name of the cabinet secretary, is grouped with amendments 118 to 120.
Humza Yousaf
Amendments 115 and 118 to 120 form part of a package of measures that respond to the two home detention curfew reports from Her Majesty’s inspectorate of constabulary in Scotland and Her Majesty’s inspectorate of prisons for Scotland. The other measures include the creation of the offence of remaining unlawfully at large, legislation to improve powers of recall and non-legislative improvements to revise guidance and interagency communication.
This grouping refers to changes that are specific to home detention curfew eligibility and operation. HDC is a form of early release from prison and can currently be granted to long-term or short-term prisoners. Subject to certain requirements as to the time served by the prisoner, HDC can be granted in the six months leading up to the halfway stage of the prisoner’s sentence. There is an added requirement for long-term prisoners that, for them to be released on parole at the parole qualifying date, the halfway stage of the sentence must be pre-approved by the Parole Board.
Amendment 115 repeals HDC for long-term prisoners—those sentenced to imprisonment for four years or more—leaving HDC available only to short-term prisoners. We consider that the repeal of HDC for long-term prisoners will ensure that the community monitoring regime for long—
John Finnie
Will the cabinet secretary take an intervention?
Humza Yousaf
I will.
John Finnie
In relation to amendment 103, in answer to a question from my colleague Daniel Johnson about supervised release orders, the cabinet secretary said that there will be no diminution of the range of facilities that are available for prisoners. Surely, amendment 115 will prevent long-term prisoners from accessing home detention curfew, as we are clearly told in a purpose-and-effect note, the source of which I presume to be the Scottish Government. When we are looking at the management of reintegration, surely removing an option is not a positive move.
Humza Yousaf
I will go on to address some of those concerns. It is probably worth giving, as some context, the number of long-term prisoners who are on HDC: it is around 0.5 per cent of all of those who are on HDC. We also know—I will come on to this point in greater detail—that long-term prisoners often do not take up HDC for a whole host of reasons including the risk that might be involved in their being recalled to prison.
We are taking important measures on the basis of two independent inspectorate reports to which we have to give weight. The member knows fine well my view that the pendulum may have swung too far the other way when it comes to HDC for short-term prisoners, but I think that the proposed move is a sensible one.
John Finnie
On the point about risk aversion and the concern that we have seen a significant drop in the number of long-term prisoners who are on HDC, the Government is legislating for a further drop. The number is small, but a range of options should be available to those individuals, including home detention curfew.
Humza Yousaf
Although I agree with the point—which has been made by a number of members—that there is a question about whether the pendulum has swung too far in the other direction, given that long-term prisoners account for only 0.5 per cent of those on HDC I am not convinced that amendment 115 is going to add greatly to that situation. That is not to take anything away from the principle of John Finnie’s point.
There are a number of advantages to repealing HDC for long-term prisoners. Going back to the independent inspectorate reports, HMICS calls for a presumption against HDC for those who have been convicted of certain serious offences, and amendment 115 will achieve that aim in a more general sense. The length of a prison sentence generally reflects the seriousness of the offence, so removing HDC from long-term prisoners will remove HDC from those who have been convicted of more serious offences.
Liam McArthur
I echo the concerns that John Finnie has raised. During the committee’s evidence sessions, we were told by both the cabinet secretary and the SPS that the new procedure for agreeing to HDCs is far more robust and that, therefore, the assessment of any risk is likely to instil greater public confidence. There must be some concern that, in generalising the removal of HDC, amendment 115 will cut across the discretion that can be used by those who are very senior and extremely experienced.
I accept that we are not talking about large numbers. However, given the accepted benefit of HDC in managing reintegration into the community, we are, as John Finnie said, effectively removing the option of assessing the risk and identifying the best way of managing the reintegration process for individuals.
Humza Yousaf
Liam McArthur has articulated his points well, and I fully accept the principle behind them, but I will make a couple of points. First, the SPS, as well as Police Scotland and the Scottish Government, agreed with all the recommendations of the inspectorate reports, so it will be fully aware of the comments of the individual inspectorate and the course of action that has been taken.
Secondly, the SPS has really substantial and robust rehabilitation processes and programmes in place for long-term prisoners and, depending on their offence, those prisoners will have gone through those programmes. Understandably, the overwhelming majority of long-term prisoners do not opt for HDC, because they feel that, if they were to do so, there would be a risk of their being recalled as a result of breaches and so on. I therefore think that there are good reasons for bringing this proposal forward.
Daniel Johnson
I wonder whether there is a slight contradiction in the cabinet secretary’s logic and whether he is conflating the seriousness of the offence with the length of the sentence. Given the point that he has just highlighted about the rehabilitation of long-term prisoners, there is reason to think that it might be safer to release somebody who has been in prison for a longer period than it would be to release somebody who has been in prison for a relatively shorter period. The crimes involved might, judging from the reports, have incurred a three or four-year sentence, whereas prisoners who have received substantially longer sentences might be in a very different category altogether. Their release from prison might be almost a lifetime away from the commission of the original offence, and they might well be very different people. I therefore wonder whether there is reason to question the cabinet secretary’s logic—particularly the conflation of the seriousness of the offence with the length of the sentence received.
Humza Yousaf
In fairness, I said that it is generally accepted that the sentence length will often correspond and align with the seriousness of the offence. I accept that there will be some anomalies, but I think that, generally speaking, it can be accepted that that is the case.
The other advantage of having HDC just for short-term prisoners is that the process can focus exclusively on, and be tailored to, that range of prisoners instead of having to maintain a set of arrangements for those who are not likely to apply for them in large numbers. It is worth noting that there are currently no long-term prisoners on HDC, which demonstrates my point that very few long-term prisoners take advantage of it.
Obviously, the repeal of HDC for long-term prisoners would be introduced for those who were sentenced after a specific date, to avoid taking the benefit away from prisoners who are currently entitled to it. Work is on-going with stakeholders to explore and examine the operation of HDC for short-term prisoners and the new presumptions against HDC, and it is being led by advice from the Risk Management Authority on the factors that are more relevant to risk of serious harm. Converting the current presumptions against HDC into statutory exclusions might still be considered as an option and, if required, could be achieved by the Scottish ministers via subordinate legislation.
Let me turn to amendment 118. The only grounds for revoking HDC and recalling a prisoner to prison are a licence breach or a problem with remote monitoring. That contrasts with the provisions in the 1993 act on recall from parole and the provisions in the Prisons and Young Offenders Institutions (Scotland) Rules 2011 on recall from temporary release. The Scottish ministers must recall a prisoner from parole if that is recommended by the Parole Board. However, under section 17 of the 1993 act, they may also recall a prisoner from parole when a recall is expedient in the public interest. Moreover, under rule 137 of the 2011 rules, the governor may recall a prisoner from temporary release whether or not the temporary release conditions have been breached. The Scottish ministers therefore have a wider discretion to recall prisoners from temporary release and parole than they do to recall a prisoner from HDC. If an offender who is on HDC behaves in a way that causes concern but that does not breach the HDC licence conditions, it will be difficult for ministers to order the recall of that prisoner from HDC.
For that reason, amendment 118 completely repeals the current limited grounds for recall from HDC and introduces a new power for ministers to recall a prisoner from HDC when they consider revocation of the HDC licence and recall to prison as expedient in the public interest. That will bring the HDC recall process into line with the wide discretion that ministers currently have to revoke a parole or temporary licence and recall a prisoner to prison. We believe that the widening of the grounds for recall from HDC will tighten up risk management around the monitoring of those who are on HDC. Amendment 118 will ensure that ministers are able to recall a prisoner from HDC if that prisoner’s behaviour in the community gives cause for concern but stops short of a breach of licence conditions.
11:15I turn to amendment 119. The Scottish ministers can recall a prisoner to prison from HDC if the prisoner has breached their licence conditions or if there is a problem with remote monitoring. Currently, the Parole Board has a role in reviewing that decision in respect of long-term and short-term prisoners when the prisoner has made representations to the Scottish ministers, and it can direct—or decline to direct—ministers to cancel the revocation of HDC. Under section 17A(5) of the 1993 act, if the revocation of HDC is cancelled on Parole Board direction, the prisoner is, for the purposes of section 3AA of the 1993 act, which is the power for the Scottish ministers to release prisoners on HDC, to be treated as though they had not been recalled.
Previously, a prisoner who had been recalled from HDC was prohibited from obtaining HDC again in the future by virtue of section 3AA(5) of the 1993 act. Section 17A(5) therefore enabled prisoners who had been recalled but had had the recall cancelled to obtain HDC again in the future. That prohibition from HDC was repealed in 2016, and that repeal has largely removed the purpose of section 17A(5). Amendment 119 clarifies that the effect of cancelling a revocation of HDC is not that an individual should be immediately re-released but that they should be reconsidered for release on HDC. That clarifies what we believe to be the original policy intent of section 17A(5) of the 1993 act and reflects how that provision has been operated in practice by the SPS.
Amendment 120 is a simple reordering of sections for drafting purposes and ease of reference.
I move amendment 115.
The Convener
Cabinet secretary, can you clarify whether amendment 115 applies to long-term prisoners and, therefore, everyone serving a sentence of four years or more? Given your comment that the provision covers the most serious offences and your reference to risk management, I presume that the raison d’être of the amendment is to eliminate possible risk to the public. However, if it covers all long-term sentences of four years or more, it will also cover, for example, fraud cases. In such cases, the person involved might not be a threat to the public but they would still be denied the opportunity to benefit from HDC. Given that consequence, it might be better if the cabinet secretary and the Government lodged an amendment that specifically spelled out which long-term offences they consider should be covered by the legislation.
Liam McArthur
I thank the cabinet secretary for being very generous in taking interventions. As he will have picked up, there are anxieties around amendment 115, but the other amendments seem to be far more straightforward.
Having listened to the cabinet secretary, I am still concerned. Although the number of individuals whom we are talking about is extremely small—there will be a variety of reasons for that—it appears that this option will be employed not across the board but in very specific circumstances. It strikes me that that is almost certainly because assessments will have been made of the risk, the specific circumstances and the benefits that would be delivered by reintegrating the individuals into the community.
I therefore urge the cabinet secretary not to press amendment 115 at this stage but to have discussions with me, Daniel Johnson, John Finnie and perhaps other colleagues to find some way of allaying the concerns that have clearly been expressed this morning about the direction in which the amendment is taking us. He will still have the opportunity to bring the amendment back to the chamber at stage 3 if he so wishes. I hope that he will take seriously the concerns that have been expressed, pause and not press amendment 115.
Daniel Johnson
I very much echo Liam McArthur’s comments. I fully understand and, indeed, agree with the sentiments behind amendment 115 and the need to appreciate the recommendations made by HMIPS and HMICS. We need a much more robust approach to risk management with regard to HDC.
That said, the end of a person’s time in prison and their coming out is a very delicate period. That is even more the case, I suggest, for long-term prisoners, and it is really important that we are able to monitor their behaviour, where they are living and so on. Sometimes, the focus in this area has been too much on shortening a person’s time in prison. That is, of course, one element of HDC, but there is also the monitoring element, which is important for long-term prisoners, too. Although I agree with the intention behind amendment 115 and where it comes from, I worry that it will have unintended consequences. The cabinet secretary has justified the move because of the low numbers involved, but I wonder whether that means that these provisions could and should be used more often, especially for long-term prisoners, to ensure that the monitoring that I have mentioned can take place.
I reiterate my support for Liam McArthur’s suggestion that we engage in talks on the matter, and I, too, ask the cabinet secretary not to press amendment 115, so that we can explore other options for pursuing the intention behind it.
Liam Kerr
I will be very brief. I entirely understand the principle behind amendment 115, but, having listened carefully to the debate, I am very keen to hear an answer from the cabinet secretary to Margaret Mitchell’s well-made point about the differences between specific crimes.
I also associate myself with many of Daniel Johnson’s comments, and I think that Liam McArthur’s suggested way forward might be the sensible one.
Humza Yousaf
I thank committee members for their questions and the debate. In direct answer to your question, convener, I confirm that the amendment will cover all long-term prisoners including those in your example, who had been given a sentence of four years or more for committing fraud. It is worth reiterating that long-term prisoners will have a number of opportunities to attend rehabilitation courses in which they will be able to delve quite deeply into their offences and their reasons for committing them, to try to change some of their behaviour. That would not be the case for someone on a particularly short sentence. The change would also allow a focus on short-term prisoners instead of there being a set of arrangements covering short-term and long-term prisoners—and I again point out that there are no long-term prisoners on HDC.
Notwithstanding all that, I hear what the committee is saying. I have always tried to approach members with an absolutely open mind. I will therefore accept Liam McArthur’s suggestion, will not press amendment 115 and will engage in conversations with the committee. We will see where we are at stage 3.
Amendment 115, by agreement, withdrawn.
Section 40 agreed to.
The Convener
I suspend the meeting for a short comfort break.
11:23 Meeting suspended.11:30 On resuming—
After section 40
The Convener
I call Daniel Johnson to move amendment 135, in the name of Mary Fee, which is in a group on its own.
Daniel Johnson
First, I convey to the committee Mary Fee’s apologies. The amendment relates to a subject that she is passionate about. Although I regret that she is absent, I am pleased to be able to move amendment 135, as it is important.
It is often said that it is not only the offender who serves a prison sentence, but their entire family. When someone goes into prison, it disrupts the lives of all manner of people who are related to and live with that person. It interrupts relationships between husbands and wives and between parents and children. The intention of amendment 135 is to ensure that such considerations are taken fully into account by the Parole Board when it is making its decisions. That is important. Time and again, when this committee has been taking evidence or has been on visits to prisons and charities that work in this area, we have heard about the impacts that prison sentences can have on families. I think, therefore, that it is only right that the Parole Board takes the holistic decisions that this amendment asks it to, and that it considers the impact on families when it is making decisions around parole.
I move amendment 135.
John Finnie
I acknowledge the considerable work that Mary Fee has done on the matter and I lend my support to the amendment. The term, “victim” is sometimes inappropriately used, but it is certainly the case that there are victims in the families of prisoners—they are victims of a system that is not of their making.
I suspect that we might be told that what the amendment calls for is happening anyway. If that is the case, that is good, but I nonetheless support the amendment, because including the proposal in the bill sends a clear signal that there are wider considerations in relation to the impact of custodial sentences.
Liam McArthur
Like John Finnie, I put on record my admiration for the work that Mary Fee has done on this issue over a number of parliamentary sessions, alongside Families Outside.
The evidence that we have heard reinforces the fact that the release of a prisoner can have quite profound impacts on the wider family. I suspect that those considerations have a bearing on the decisions that are made.
From what I can see, the language that is used in the amendment does not appear to be overly rigid. It seems simply to confirm what we assume takes place at the present time. Therefore, I will be interested to hear what the cabinet secretary has to say about the potential downsides of setting out the proposal explicitly in the bill. However, for now, I welcome the fact that Mary Fee has allowed this discussion to take place at stage 2.
Rona Mackay
I thank Mary Fee for lodging the amendment. I agree with everything that Daniel Johnson said; I am also passionate about the issue. However, I have a reservation to do with the timing of the amendment, as I think that the issue will be addressed under the Parole Board review. Families Outside has responded to the consultation, and I know that that response will be fully considered. Therefore, I think that the amendment should be put on hold—indeed, I think that it might be a probing amendment. Again, I repeat that I fully support the intention behind the amendment.
Fulton MacGregor
Like others, I put on record my appreciation of the remarkable work that Mary Fee has done in this area, alongside Families Outside. Like Rona Mackay, I am quite passionate about the issue.
However, I have some concerns at this stage. I do not know whether Mary Fee’s intention was just to get a discussion going, as Liam McArthur said, and to come back at stage 3, but I would like a bit more discussion and more meat on the bones around the effects on licence conditions where there might be an exclusion zone in place, or on family members, for example. I certainly agree with the principle of the amendment, but it needs a wee bit more work and teasing out before I could be in a position to vote for it.
The Convener
I am happy to support amendment 135, which covers the impact that a prison sentence can undoubtedly have on the wider family. I take the opportunity to acknowledge and commend Mary Fee’s excellent work on the issue.
Humza Yousaf
I, too, add my thanks to Daniel Johnson for moving the amendment and place on the record the credit due to Mary Fee, who has been a long-standing advocate for the rights of the Families Outside organisation and families of prisoners more generally in wider society. Her work in the cross-party group is also worth commending.
Amendment 135 seeks to amend the Prisoners and Criminal Proceedings (Scotland) Act 1993 to create a new section 1ZAA, to provide that the Parole Board must assess and take into account the impact on a prisoner’s family when making recommendations on the release of a prisoner, including any recommendation about the conditions of release.
My concern about the amendment is that the provisions would be misplaced in the 1993 act and would be more appropriate in the Parole Board (Scotland) Rules 2001. That is where the rules governing parole are located, for flexibility and to ensure that there is no rigidity, which primary legislation often brings with it.
I recently met Nancy Loucks, the chief executive of Families Outside, and we discussed some of the issues faced by prisoners’ families. I can understand some of the problems that they face and I am sympathetic to their views. However, the consultation, “Transforming Parole in Scotland”, which closed on 27 March, included proposals to provide additional support to prisoners in the parole process and asked whether we should also look at issues for the families of prisoners.
We are considering the consultation responses, including those from Families Outside, and some that advocate that consideration of a prisoner’s family should be taken into account when the Parole Board is considering release. As such, I can offer assurances that the provision of assistance to prisoners and issues for their families will be fully considered in light of responses to the consultation. We will amend the Parole Board (Scotland) Rules 2001 as part of the implementation of the bill. We can also take the opportunity to look at the points that are being raised at that time.
I therefore ask that amendment 135 is not pressed and, if pressed, I ask the committee to reject it.
Daniel Johnson
I hear the comments about the need for detail and the questions about whether the bill is the correct place for the provision. However, I point out to members that this is a broadly stated amendment that makes provision for a broad consideration. It does not have detail. Indeed, there are many situations in which that is an advantage, because it provides flexibility. It certainly does not preclude further amendments such as those that the cabinet secretary has laid out. It makes sure that such considerations are made.
The broad nature of the amendment means that it is measured, sensible and in line with things that we are looking at. The very fact that there is potential for further legislation on the Parole Board means that further detail can be considered, but the amendment would put a legal duty firmly in place. For those reasons, I press amendment 135.
The Convener
The question is, that amendment 135 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Finnie, John (Highlands and Islands) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Against
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Abstentions
McArthur, Liam (Orkney Islands) (LD)
The Convener
The result of the division is: For 4, Against 4, Abstentions 1.
I will use my casting vote in favour of the amendment.
Amendment 135 agreed to.
Section 41—Re-release after revocation of licences generally
The Convener
Amendment 116, in the name of the cabinet secretary, is grouped with amendment 117.
Humza Yousaf
Section 41 of the bill amends section 17(4) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 to remove the word “immediate” to extend to all directions in respect of the release after recall to prison and replaces it with the words “without undue delay”. As a consequence of the amendment to section 41 of the bill, it is necessary to amend section 10A to remove the word “immediately” from that section. Amendment 116 will achieve that objective.
Amendment 117 is part of a tidying-up of the operation of the licence recall/revocation system. Currently, the reasons for recalling a prisoner from a period of early or temporary release are provided on recall or on return to custody. The change that will be made by the amendment will introduce a standard requirement and a more consistent operation of the system of recall, whereby the reasons for a prisoner’s recall to prison from parole, HDC or temporary release are provided on the prisoner’s return to prison. That also ensures that a failure to provide reasons at the time of recall from parole does not impact on the ability to recall the prisoner to prison in what might be urgent circumstances.
I move amendment 116.
Amendment 116 agreed to.
Amendment 117 moved—[Humza Yousaf]—and agreed to.
Section 41, as amended, agreed to.
After section 41
The Convener
Amendment 128, in the name of Daniel Johnson, is in a group on its own.
Daniel Johnson
The amendment stems from a fundamental principle that is really important, which is transparency when it comes to the exercise of the law. It is an important principle in a great number of areas of the criminal justice system—in particular, the Parole Board for Scotland. In this instance, it is important that the reasons for decisions are well understood by the public, both when it comes to the source of the decisions and the criteria that are applied in the decision-making process, but also when it comes to the decisions themselves.
The amendment seeks to require the Parole Board to do two things: first, to devise and publish a test or series of factors that it uses and takes into account when making its decisions and recommendations; and secondly, to publish, albeit with “modifications and redactions” where appropriate, the summaries of its recommendations. When it comes to improving the transparency of the Parole Board, those are important steps.
John Finnie
I will be honest with Daniel Johnson. I have an open mind on the matter—I want to understand. With regard to openness, transparency and redactions, what do you anticipate might be redacted?
Daniel Johnson
I thank John Finnie for that important intervention.
In part, because of one of the previous amendments that we have already agreed to, the Parole Board might take into account a great number of factors and considerations that might involve other individuals, whose privacy is important.
It would be an unfortunate consequence of the publication of a summary of those decisions if it compromised the privacy of an individual who had committed no crime, but whose circumstances are nonetheless material or relevant to whether someone else may be released on parole. An individual’s associations and relationships are relevant to parole decisions. It is therefore important that the Parole Board has the ability to redact information when such considerations are involved.
11:45In some ways, amendment 128 is brief and straightforward. That is important because we must not be overly prescriptive in black-letter law about what the tests or factors should be—that is a matter to be determined by the Parole Board. The fact that they are published means that it will be an open and transparent process.
I hope that amendment 128 is an important step forward in addressing some of the issues that arose around the Worboys case, particularly in relation to the nature of decision-making in the Parole Board for England and Wales and why it had taken particular decisions. I understand that the operation of the Parole Board for England and Wales is substantially different to that of the Parole Board for Scotland, but it is not difficult to conceive of similar circumstances arising in Scotland. The proposed step will improve transparency and help us to avoid similar situations.
I move amendment 128.
Liam McArthur
I thank Daniel Johnson for lodging the amendment and setting out clearly the intention behind it. The point that he makes on the importance of transparency in securing public confidence is pivotal. Like John Finnie, I recognise that the reference to modifications and redactions is Daniel Johnson’s reasonable attempt to accommodate the restrictions on transparency that would be required. Those might relate not simply to third parties whose details would need to be redacted, but also to details about the individual themselves that it would not be appropriate to put in the public domain.
A little like John Finnie, I come to amendment 128 with an open mind. My anxiety is that there is a current consultation on the Parole Board to which this debate is germane and I would want it to be picked up there—I am less certain about whether it should be done in the 2001 Parole Board rules that the cabinet secretary referred to earlier.
Nevertheless, increasing public confidence through greater transparency is a point well made and, in that sense, the amendment serves a useful purpose.
The Convener
I am minded to support amendment 128, which would lead to greater transparency in the parole process, which would certainly be welcome.
Humza Yousaf
The openness and transparency of the Parole Board is an issue. I have spoken to the families of victims and, time and again, those families tell me that they wish to see greater openness and transparency. I am sure that that is reflected in the conversations that every committee member has had.
I am committed to an absolutely open and transparent Parole Board and I recognise that the amendments in Daniel Johnson’s name go some way towards achieving that aim. I am supportive of what he is trying to do. I would be willing to work with Daniel Johnson to assist him to lodge an amendment at stage 3, which would provide for the Parole Board to publish the test of factors that it takes into account when making a recommendation. However, I would ask him to remove the requirement to provide a summary of recommendations. I consider that to be a matter that is more appropriate for the Parole Board rules of procedure and the most recent consultation—both of which have been mentioned.
I have some concerns about the technical details in relation to the redaction of information—both John Finnie and Liam McArthur have raised those issues. None of those points is insurmountable, so I would ask Daniel Johnson not to press his amendment, but to work with the Government to lodge at stage 3 an amendment that would fulfil his general aims, with the exception of the requirement to provide a summary of recommendations, about which I have some reservations.
The Convener
I invite Daniel Johnson to wind up and say whether he will press or seek to withdraw amendment 128.
Daniel Johnson
I thank the committee members and the cabinet secretary for their constructive comments and for acknowledging the intent behind amendment 128. On the basis of what has been said and what the cabinet secretary has offered, I seek to withdraw amendment 128. I look forward to coming up with a revised amendment for stage 3.
Amendment 128, by agreement, withdrawn.
Section 42—Representations by certain recalled prisoners
Amendments 118 and 119 moved—[Humza Yousaf]—and agreed to.
Section 42, as amended, agreed to.
Amendment 120 moved—[Humza Yousaf]—and agreed to.
After section 42
The Convener
Amendment 79, in the name of Gordon Lindhurst, is in a group on its own.
Gordon Lindhurst (Lothian) (Con)
The purpose of amendment 79 is to ensure that proper representation is available to vulnerable prisoners at Parole Board for Scotland hearings. There appears to be a lacuna in the legislation at present. The drafting and lodging of amendment 79, a letter on the matter from the cabinet secretary and the Scottish Government consultation on transforming parole in Scotland, which closed on 27 March 2019, happened more or less simultaneously and could be said, in the old-fashioned expression, to have crossed in the post.
I thank the cabinet secretary for the letter that he sent me on the matter, which indicated that he wishes to consider matters further in light of the consultation that has just closed. The cabinet secretary might wish to make some comments at this stage, if the convener is minded to allow that.
I move amendment 79.
The Convener
Do members have any comments? On the face of it, what amendment 79 proposes seems very sensible, but I will be interested to hear what the cabinet secretary has to say on it.
John Finnie
There is a fundamental principle in amendment 79 that is worthy of support and which I hope will be picked up by the Scottish Government. It is fundamental that everyone who is involved in a process understands it; if they do not, it is clearly not a fair process. I hope that that issue will be addressed and I thank Gordon Lindhurst for bringing it forward.
Daniel Johnson
I very much agree with what John Finnie has just said. What the amendment proposes is sensible and progressive. I look forward to hearing what the cabinet secretary says about how it could be moved forward.
Liam McArthur
I echo what Daniel Johnson and John Finnie have just said. The crossing in the post might be the issue that we need to get round, but I hope that the cabinet secretary can offer some reassurance about how what amendment 79 proposes will be dealt with.
Humza Yousaf
I thank Gordon Lindhurst for his constructive approach on this issue. As well as writing to me, he has approached me about how to take forward an issue that has substance and merit—no doubt his considerable experience before becoming an MSP has contributed to that.
Amendment 79 refers to matters relating to the procedure that the Parole Board undertakes when considering a case. As I have said previously, Parole Board procedures are set out in rules that are made by Scottish ministers under section 24 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. Those rules of procedure might require amendment to deal with new eventualities or to adapt to changing circumstances. It is for those reasons that rules of procedure are set out in secondary legislation. I am concerned that the approach that is adopted in amendment 79 would have a detrimental impact on the ability to amend the procedures of the Parole Board in those rules in the future.
If accepted, the amendment would result in part of the Parole Board procedures being provided in primary legislation, while the remainder would be provided in secondary legislation in the Parole Board rules. The result would be that any further change to the provisions that are set out in the amendment would require a further Scottish Parliament act, rather than secondary legislation.
In this instance, I remain of the view that it is entirely appropriate that matters of procedure for the Parole Board should be provided for by secondary legislation, which provides us with the speed and flexibility to change aspects of Parole Board procedure at a quicker pace. As I said, it should be in the Parole Board rules, rather than in this bill.
I agree that the proposal has some merit, but I would prefer to gain an understanding of how the appointment of a curator ad litem would work and what impact that would have on prisoners appearing before parole tribunals, who are already entitled to assistance by way of representation. If Gordon Lindhurst is not minded to press the amendment, I can give him further information on what the support for vulnerable prisoners at parole hearings looks like.
A number of members have referred to the consultation on parole, which closed just last month. I guarantee that the issue that Gordon Lindhurst raises will be part of our consideration and analysis of the consultation responses.
There are also a few technical issues with amendment 79, but I do not think that I need to go into any great detail on those. I ask Gordon Lindhurst not to press the amendment and to work with me after the meeting to discuss what is in the consultation on the rules for Parole Board hearings and to take matters forward thereafter. If he is not satisfied, he can lodge an amendment at stage 3.
Gordon Lindhurst
In the light of the cabinet secretary’s commitments, I will not press the amendment.
Amendment 79, by agreement, withdrawn.
Section 43 agreed to.
After section 43
The Convener
Amendment 121, in the name of Humza Yousaf, is grouped with amendments 122, 122A, 122B, 122C, 122D and 123.
Humza Yousaf
The Scottish Government amendments in this group—amendments 121,122 and 123—relate to persons unlawfully at large. They have been lodged as part of the Scottish Government’s response to the recommendations from Her Majesty’s inspectorate of constabulary in Scotland. The Scottish Government’s proposals provide a new and additional punitive element for those who remain unlawfully at large, and they also address the question of powers of entry for the police.
Before I go into the substance of the detail, I put on record my admiration for the McClelland family, whom I have met and listened to on a number of occasions. We have our differences—they will be the first to tell you that—but that does not take away from my admiration for them. The new offence and the subsequent changes to the HDC regime are a result of the inspectorate’s reports in the aftermath of that terrible tragedy.
Amendment 121 is a more technical amendment in this grouping. Part 15 of the Prisons and Young Offenders Institutions (Scotland) Rules 2011 provides a regime of temporary release for prisoners. Temporary release is considered to be a form of release on licence in practice and prisoners are issued with a temporary release licence with licence conditions. However, temporary release is not referred to as a form of release on licence in the Prisons (Scotland) Act 1989 or in the prison rules. Amendment 121 simply clarifies that temporary release is a form of release “on licence”. That will mean that there can be a consistent approach to how we refer to parole, HDC and temporary release throughout the bill; they will all be forms of release on licence.
Amendment 122 creates the offence of remaining unlawfully at large. An offender can currently be unlawfully at large in any of the following circumstances: when the offender remains at large after being recalled from HDC; when the offender remains at large after being recalled from parole by ministers, either with or without Parole Board recommendation; when the offender remains at large after being recalled from temporary release by the prison governor; and when the offender fails to return to prison on the expiry of a period of temporary release. The policy intention is to mirror the offence in England and Wales and create an offence of being unlawfully at large and failing to return as soon as reasonably practicable.
It is important to stress that, following the creation of an unlawfully at large offence, there will be two aspects of being unlawfully at large. First, the recall of a prisoner to prison or the expiry of a period of temporary release means that the prisoner is unlawfully at large and can be arrested without warrant. When a prisoner is recalled to prison, the prisoner need not be aware of the recall order to be unlawfully at large. Secondly, if a prisoner who is unlawfully at large fails to return to prison as soon as reasonably practicable, the prisoner will commit an offence. The offence will be committed when the prisoner fails to return to prison as soon as reasonably practicable after being notified of their recall or after the expiry of a period of temporary release.
12:00The unlawfully at large offence does not cover electronic monitoring that is imposed by a court in a community sentence; an offender cannot be unlawfully at large under a community sentence. When an offender breaches the terms of a community sentence, the court already has an ability to vary the sentence, impose a fine or return someone to custody, if that is deemed appropriate.
The unlawfully at large offence is framed so as to provide the offender with a number of defences to a charge of remaining unlawfully at large, such as these: they had a reasonable excuse for the delay; they were not notified or the notification was not properly effected; their return was as soon as possible in the circumstances; or, although they failed to return to prison, they took all reasonable steps to return.
Liam Kerr
I seek some clarity on the notification. We have had some detail about this, but what does it mean to be notified? By definition, if someone is unlawfully at large, they may well not be at a premises or location where they would otherwise be expected to be.
Humza Yousaf
The safeguards are to have both an oral and a written notification. In practice, the individual will have to provide an address where they are to be located during the period of the HDC—the curfew period—and every attempt will be made to get that notification out to them at that address. The reasonable excuses for delays that I have just outlined are for the absolutely exceptional cases in which someone did not receive a notification.
In the majority of instances, if someone is issued with a recall notice—I have seen this and I am sure that other members have been to the G4S centre, too—in the first instance an oral notification is most likely to be given and that will be followed up by a written notification. There are safeguards in place. The cases that I am talking about would be the exception rather than the rule.
I see that Mr Kerr has raised his eyebrow and may wish to come back on that.
Liam Kerr
I understand the point that you are making, but I am not necessarily persuaded. Imagine a scenario in which I am the person being recalled. I would have a defence if the authorities were unable to notify me, in accordance with the legislation, that I am to be recalled. Therefore, if I can set up a set of circumstances in which the authorities are unable to notify me, I can avail myself of a defence. That seems odd.
Humza Yousaf
That is not quite the case. I was perhaps not as clear as I could have been, so I will clarify that point. It is about being deemed to have been notified. If Liam Kerr were not at the premises—although he should be, because he would be subject to a curfew, which generally tends to be between 7 and 7—a written notification would be left at those premises and, even if he did not receive it, he would be deemed to have been notified, because he should have been at that address at that time. I hope that that reassures him on that point. The defence is only for exceptional circumstances.
I am open to members coming back to me for further clarification.
Daniel Johnson
One of the other scenarios that has cropped up is people giving an address outside Scotland. Can the cabinet secretary clarify what would happen if someone were to give an address in another part of the United Kingdom?
Humza Yousaf
One of the recommendations of the inspectorate’s report was that a more robust regime should be put in place for interagency communication. I can clarify that there is now a point of contact for every force in England and Wales in respect of recalls—that was not the case previously. It would be the responsibility of the English or Welsh force to make the notification.
The offence that we are creating mirrors the offence in England and Wales, so you would think that the forces in England and Wales would be more aware and have some practical experience of what we are trying to do. To reassure Daniel Johnson, I say that the important point is that we now have a point of contact with every single police service in England and Wales, which was not the case previously.
The advantage of the unlawfully at large offence is that it enables the police to apply for a warrant to enter and search a property to apprehend a person who is suspected of committing an offence using powers in section 1 of the Criminal Justice (Scotland) Act 2016. It provides a criminal sanction that could act as a deterrent for such behaviour. That will sit alongside other sanctions whereby the unlawfully at large offender is returned to prison and required to serve the remainder of their sentence and a period equivalent to the time spent unlawfully at large.
The provision reduces the need for further offences, such as cutting off a tag or breaching licence conditions in general, as anyone who breaches their licence conditions can be recalled, and their failure to return thereafter would be a criminal offence.
On amendment 123, once an offender is unlawfully at large, the police or a prison officer can arrest the offender without a warrant under section 40 of the 1989 act. There is a statutory power in section 40A of the Prisons (Scotland) Act 1989 to apply for a warrant to arrest an offender who is unlawfully at large, but section 40A does not make clear who can apply for a warrant or whether the warrant can include a power of entry and search. Accordingly, we propose to amend section 40A of the 1989 act to make it clear that only the police can apply for a warrant under that section, and that the warrant will include a power to enter and search premises to locate an offender who is unlawfully at large. We believe that that will address the lack of clarity that the inspectorate’s report referred to in the responsibility for obtaining a warrant under section 40A. The McClelland family have also raised the issue with me on a number of occasions.
Liam McArthur
Will the cabinet secretary take an intervention?
Humza Yousaf
Of course.
Liam McArthur
The wording in subsection (3) of the proposed new section in the 1989 act refers to conferring power on a constable
“using such force as the constable considers necessary”.
My understanding is that “reasonable force” is the standard language in those circumstances, rather than implying a level of discretion on either the individual constable or the police more generally. Will you reflect on whether that wording needs to be amended at stage 3?
Humza Yousaf
I am happy to reflect on that wording and thank Liam McArthur for raising it. The issue has not been raised with me before, so I will reflect on the point.
Amendment 123 also tidies up some of the language that is used in section 40 of the 1989 act and in section 9C of the 1993 act to make it clear that the warrant procedures in section 40A of the 1989 act apply to all offenders who are unlawfully at large.
I cannot support amendments 122A to 122C from Daniel Johnson. I propose to resist them on the basis that they would restrict the court’s ability to determine how best to respond to the offence. The effect is unduly punitive and restricts the discretion of the courts to consider the circumstances before them and to sentence accordingly. This is an unusually regressive proposal from someone whom I know to be a progressive on such matters. The courts can already consider custody as an option. We have the highest prison population in western Europe, and our prisons are operating close to capacity, so removing at least the option for the court to consider non-custodial disposals in any situation needs careful thought and I am not convinced it is the right approach.
I also note that amendments 122A to 122C would remove the court’s ability to impose a prison sentence alongside a fine in cases in which the severity of the offence merits such a penalty.
Amendment 122D is unnecessary because there are already legislative provisions covering the issue that Daniel Johnson seeks to address. In addition, the replication of existing legislation could cause confusion about which provision should apply in a given case.
When an offender commits an offence punishable by imprisonment while serving a previous sentence of imprisonment in the community, section 16 of the 1993 act enables that previous sentence to be restated by the court and the sentence for the new offence to be imposed consecutively. That enables the court to provide that the time between the commission of the unlawfully at large offence and the imposition of a further prison sentence for the unlawfully at large offence is to be served as a separate prison sentence.
Section 40(2) of the Prisons (Scotland) Act 1989 provides that time spent absent from prison without lawful authority does not count as time served towards the underlying prison sentence. That removes any need for amendment 122D, as the time that a prisoner spends unlawfully at large will require to be served by that prisoner when they are returned to prison.
Amendment 122D would create confusion, as it replicates legislative provision that is already in force. I urge Daniel Johnson not to press that amendment.
I move amendment 121.
Daniel Johnson
In broad terms, I support the new offence. This is an important issue, for the reasons that the cabinet secretary has set out.
I think that the Craig McClelland murder established that there are deficiencies in how HDC is being operated and, critically, in the powers of the police. The point about needing a warrant to enter premises is a key aspect that came out of those circumstances, so I welcome the introduction of the offence—it is a positive step forward. However, it is important for the offence to have teeth, which is essentially what my amendments seek to give it. In short, their purpose is to add the time spent when someone is unlawfully at large on to the time that they serve in prison.
The cabinet secretary said that that is an “unusually regressive” proposal from someone who normally espouses progressive criminal justice proposals. I am indeed someone who tries to be progressive. However, my very firm principle is that the criminal justice system must provide people with the opportunity and ability to reform and be rehabilitated, and when they do not take that opportunity, or breach the conditions attached to an opportunity that has been extended to them, they must face the consequences. That is exactly what my amendments in the group seek to do.
Someone who is on HDC, or out on a tag, is participating in an alternative to spending time in a prison. When they breach those conditions and spend time unlawfully at large, it is important that there is a direct consequence. I think that that should mean that they have to return to prison, because they have been given an alternative to prison and they are breaking the conditions that have been set.
John Finnie
Will you comment on the cabinet secretary’s point about the effect of the amendments in removing judicial discretion?
Daniel Johnson
I think that we need to be cautious. What I propose is not an isolated example, as the law sets out the penalties in a number of situations. My proposal is very simple: it stipulates that the time spent unlawfully at large—when someone is in breach of their conditions—is added on, and that non-custodial alternatives are not acceptable when someone breaches HDC conditions. Given that HDC is essentially an alternative to prison, I think that that is a sound principle.
Liam Kerr
I am broadly sympathetic to Daniel Johnson’s amendments, particularly amendments 122A and 122D. However, I hear the cabinet secretary’s point on amendments 122B and 122C. Will Daniel Johnson explain why he wants to remove the ability to fine as an alternative? That sounds rather harsh.
Daniel Johnson
I propose doing so for the simple reason that the public’s confidence in HDC, how it operates and the consequences when people breach HDC conditions has been severely shaken. My amendments provide a very simple and understandable set of consequences for people who breach HDC conditions. The simple consequence is this: if someone breaches their conditions, the time that they spend unlawfully at large will be added on to their sentence. I think that that simplicity and clarity will help re-establish confidence in the HDC regime. That is why I have made those proposals.
12:15Fulton MacGregor
Is there a possibility that you are trying to legislate for what might have been appropriate for the case that you referenced but might not be appropriate for all cases?
Daniel Johnson
I struggle to conceive of circumstances in which it would not be appropriate to return to prison someone who has breached conditions for HDC, which is an alternative to prison. HDC is put in place in lieu of someone serving time in prison. I am making the proposals with my amendments because of the simplicity of the circumstances. The consequence is an easily understood proposition.
Liam McArthur
I welcome the general direction of the Government’s amendments in this group, which pick up concerns that were raised with us throughout our consideration of the bill at stage 1, notably those that arose from the tragic events of Craig McClelland’s murder.
In my intervention on the cabinet secretary, I alluded to a drafting anomaly in amendment 123. There is one in amendment 122, too, and the Law Society of Scotland has raised concerns with me about the language that is used. There is a concern about proper notice being given “orally or in writing”, as opposed to “orally and in writing”, because the persons who are going on temporary release might not necessarily fully understand the details of their licence. It might be worth engaging with the Law Society about its concerns ahead of stage 3.
Similarly, proposed new sub-section 32C(2) of the 1989 act refers to individuals being “warned”, as opposed to “advised”. That language strikes a slightly discordant note.
There are also anxieties about the way in which language is used in relation to the fixed nature of the address to which notice would be sent and the implications that that might have.
None of that detracts from the value of the cabinet secretary’s amendments in relation to the improvements that they deliver to the bill, but if the Law Society is raising such concerns about the drafting, I hope that they will be picked up by the cabinet secretary and his officials ahead of stage 3. However, on the basis of what he said, I will support his amendments.
Liam Kerr
I will take the amendments in reverse order.
This has been an interesting debate, and I have thought carefully about how I will vote. I am persuaded by Daniel Johnson’s arguments, particularly on the matter of simplicity and clarity. For that reason—I say this with genuine respect, cabinet secretary—I do not think that it is helpful to label amendments as progressive or not.
Although I will support the Government’s amendments in this grouping, they do not go far enough. I say that not because I am not progressive, but because the right thing to do is what my amendment 73 would have done, which is to make cutting off or tampering with a tag a criminal offence. I will lodge another amendment at stage 3, and I urge the cabinet secretary to consider it very carefully.
I will support the cabinet secretary on amendments 121 to 123, but I put it on record that they do not go far enough. I look forward to pushing further at the next stage.
The Convener
I will address Daniel Johnson’s amendments. He said that it is important that the offence of being unlawfully at large has teeth, which I agree with. Public confidence in home detention curfew has been shaken. Adding time to a sentence when there has been a breach would be a deterrent—a fine would not be seen in that way, as the cabinet secretary suggested. For those reasons, I am minded to support Daniel Johnson’s amendments.
Humza Yousaf
I thank members for a very useful and helpful discussion. I have just a couple of points to make.
We will pick up on the points that Liam McArthur made about the drafting. I have not seen the Law Society of Scotland’s note, but I am sure that we can get a copy of it, and we can have a look at potential anomalies. We will reflect on those points.
To go back to Daniel Johnson’s amendments, things have perhaps been done in the wrong order. Our amendments do not prevent the courts from imposing a custodial sentence for the offence of being unlawfully at large. That is at the discretion of the courts, as absolutely should be the case. Daniel Johnson’s amendments do not allow for any other alternative to be considered, and that is the wrong way round. I leave it to Daniel Johnson to reflect on the fact that a Conservative member has suggested that he is being too punitive.
On Liam Kerr’s points, I have previously articulated why making the cutting off of a tag an offence in itself is not wise. There are other licence conditions, and we would be creating a hierarchy. Having an offence of being unlawfully at large is the right way to go.
I ask Liam Kerr to reflect on the issue of not labelling people. I will remind him of that point the next time I see a press release from him that talks about “hard” or “soft” justice.
Liam Kerr
Will the cabinet secretary take an intervention? It is not on that point.
Humza Yousaf
Of course I will.
Liam Kerr
I enjoyed the point that the cabinet secretary made; it was amusing.
I appreciate that we are not discussing the cutting off of tags, but I would like to go back to that. I seem to recall that, in that discussion, the cabinet secretary did not support my amendment 73 because, as he said, people could cut off the tag for legitimate reasons. I do not expect him to answer this question now, but can he come back to me before stage 3 with data on how many tags have been cut off and the full range of reasons, such as medical reasons, why they have been cut off?
Humza Yousaf
I do not have the data in front of me, of course, but I will look into that. I suspect that the number is extraordinarily low and that that is the point that Liam Kerr is trying to make. However, the point of legislation is that we have to factor in the anomalies. That is why we have things such as reasonable excuses.
I will not go into too much detail on the point that I tried to make, because we are not debating the issue. Is that particular breach of the condition—the cutting off of the tag—worse than somebody approaching a school if they have a licence condition that says that they are not meant to, for example? If not, why is approaching the school, which would be a breach of the licence condition, not an offence, but the cutting off of a tag is?
There are questions there, but I will reflect on the issue. Liam Kerr said that he will lodge another amendment at stage 3. I will carefully reflect on what that amendment says, but I ask him to take those points on board and reflect on them before he lodges it.
Amendment 121 agreed to.
Amendment 122 moved—[Humza Yousaf].
Amendment 122A moved—[Daniel Johnson].
The Convener
The question is, that amendment 122A be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Johnson, Daniel (Edinburgh Southern) (Lab)
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Against
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
The Convener
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 122A disagreed to.
Amendment 122B moved—[Daniel Johnson].
The Convener
The question is, that amendment 122B be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Johnson, Daniel (Edinburgh Southern) (Lab)
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Against
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
The Convener
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 122B disagreed to.
Amendment 122C moved—[Daniel Johnson].
The Convener
The question is, that amendment 122C be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Johnson, Daniel (Edinburgh Southern) (Lab)
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Against
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
The Convener
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 122C disagreed to.
Amendment 122D moved—[Daniel Johnson].
The Convener
The question is, that amendment 122D be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Johnson, Daniel (Edinburgh Southern) (Lab)
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Against
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
The Convener
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 122D disagreed to.
Amendment 122 agreed to.
Amendment 123 moved—[Humza Yousaf]—and agreed to.
The Convener
Amendment 64, in the name of Daniel Johnson, is grouped with amendments 65 to 67 and 129.
Daniel Johnson
I reassure the cabinet secretary that we are very much on progressive and cuddly ground with this group of amendments, which are probing amendments. Although I will move amendment 64, I will not press it or move the other amendments in the group, because I recognise that there would be considerable technical difficulty in implementing them. However, I am seeking to raise a fundamental issue that the bill could and should have addressed more fully.
As I understand it, the Management of Offenders (Scotland) Bill seeks to make provision to improve the process when someone’s time in prison comes to an end. That very important time is when the criminal justice system will fail or succeed, because it is at the point of release that a person will or will not successfully reintegrate into society.
My amendments seek to set out simple ways to drastically improve people’s ability to successfully reintegrate with society. At the moment, people are very often left to their own devices when they are released from prison, with £50 in their pocket. They have nowhere to go, no means of sustaining themselves and no access to healthcare. What on earth do we expect to happen when we release people in those circumstances and conditions?
For a great number of people who face those circumstances, the reality is that they will have no option but to reoffend, either because that is the only means by which they can sustain themselves, or because their situation means that they will immediately be reimmersed in the social and material circumstances that led to the offending behaviour that put them in prison in the first place.
Amendment 64 sets out the broad duties of providing access to a general practitioner, a correspondence address and appropriate identification. Amendments 65 to 67 spell out those duties in a bit more detail.
At this point, I thank the Wise Group for allowing me to shadow one of its prison mentors. We literally spent the day going back and forth across Glasgow to help an individual get the medication that they needed to stay clean and off illegal drugs. If we had not done that, they would have returned to their street dealer and a life of illegal drug consumption. We had to do that because they were not registered with a GP, as they lost their registration when they entered prison.
The simple point of amendment 65 is to make it a legal obligation that a prisoner is registered with a GP at the point when they are released from prison. This is a simple bureaucratic matter. Many people will have been registered with a GP before they entered prison, so why can they not simply be reregistered with their GP? Alternatively, people receive medical care from general practitioners when they are in prison, therefore could that provision not be extended, albeit it on a temporary basis, to them following their release?
12:30
Liam Kerr
As Daniel Johnson knows, I am very sympathetic to what he is trying to achieve here. My concern is around the practicalities of mandating registration with a GP, which certainly would be a challenge in the north-east of Scotland at the moment. Will Mr Johnson speak about the practicalities of what would happen if the provision is introduced, but it is simply not possible for the Government to comply with it?
Daniel Johnson
I thank Liam Kerr for making that point, which raises a much wider point about access to GPs and the number of closed lists in Scotland. Certainly, in my constituency, the proportion of GP practices that are closed to new patients is around 60 to 70 per cent. Notwithstanding that issue, the reality is that people receive medical care while they are in prison and I wonder whether there is the possibility and flexibility to provide them with access to a general medical practitioner following their release from prison.
On the practicalities, the reality is that not registering people with a GP will lead to circumstances that will cause reoffending. It is challenging, but failing to do so will let that individual down and, more importantly, will create circumstances in which that individual may well reoffend.
Amendment 66 is on providing an address for prisoners. Although I would like to see a much more broadly stated requirement to ensure that accommodation is available for an individual when they are released from prison, I recognise that that is a huge ask. However, providing a correspondence address, so that an individual at least has the ability to make provision for themselves—by opening a bank account or taking other such measures—would be a major step forward. In Ireland, the postal service has recently announced plans to create free personal postal addresses to enable letter collection and to provide a formal address for people who are without permanent accommodation. It strikes me that such a scheme could work in these circumstances.
Amendment 67 relates to prisoners being able to prove their identity and I will explain some of the detail of it. Lacking proof of identity is a major hurdle for people who are coming out of prison, when applying for jobs and other things that they need to live their lives, but most importantly when applying for benefits. The DWP will simply not take applications unless people can prove their identity, which has to be with photographic ID. That is why my amendment specifies that the ID must be a driving licence, although I reassure members that that can be a provisional driving licence, so the person will not need to have passed a driving test. That is the only form of ID, other than a passport, that the DWP will accept. There are a number of proof-of-identity schemes out there, but I understand that they are not acceptable to the DWP. That is why either a passport or a driving licence is required and why I have specified a driving licence in the amendment.
Liam Kerr
Daniel Johnson knows my concern about that. I completely understand the reason for the amendment, which I think is a good one, and I completely understand Mr Johnson’s rationale behind mandating a full or provisional driving licence and where he is coming from. However, I am not convinced that it is the right solution. People apply for a provisional licence for a particular reason: to be able to drive. I am not convinced that we should be using it as a circuitous route to allow people to apply for benefits. I hesitate to go into matters that are presumably reserved, but why would we not address the requirements of the DWP, and ask whether it is more appropriate that it accepts a wider suite of documents, rather than try to drive people towards a provisional licence, which was not created for that purpose?
Daniel Johnson
I understand the member’s concern and I had reservations before I put the detail in the amendment. However, in the absence of any other photographic ID being officially acceptable, this is the only approach that we can take. The only other option would be to make provision for passport applications and, for very obvious reasons, we might not want to make it more feasible for people who are released on licence to go abroad.
The best way of preventing someone from reoffending is to ensure that they have a job. That is intuitively correct and it is what the evidence shows us. Amendment 129 sets out that the Prison Service should take all steps within its power to ensure that someone has employment. Short of that, the Prison Service should make it possible for that person to apply for benefits in advance of leaving prison. We are all too familiar with the issues regarding applications for universal credit and with the time lag that is innate within that process. Amendment 129 makes provision to ensure that before the person is released, they make the necessary applications, either for employment or benefits, so that when they are released, they have not just £50 in their pocket but the means to support themselves. That will remove the issues that can lead to reoffending. The amendment reflects some of the good practice that already takes place in some parts of the Prison Service, notably in HMP Inverness, where such a scheme is in place. Amendment 129 simply seeks to make such provision a legal obligation, so that all prisoners can enjoy that support.
Fundamentally, the best way to keep our communities safe and prevent offending is to ensure that those who come out of prison are given the best opportunities for rehabilitation, so that they do not reoffend in the future. That is what the amendments in the group seek to do.
I move amendment 64.
John Finnie
I am very grateful to Daniel Johnson for lodging his amendments—what’s not to like about them? Over the years, we have heard repeatedly from the Prison Service that preparing for release is crucial. The amendments stray into aftercare, which is equally important. If someone does not have a roof over their head or access to medical treatment, particularly given some of the challenges that people who have been to prison will have, we will have a problem.
The irony is that, relatively recently, medical provision transferred from the Scottish Prison Service to the national health service, which should make the steps easier. However, Daniel Johnson rightly identifies the challenges relating to closed lists for medical practices. A way around that challenge is to increase the use of salaried doctors, as was the case with salaried dentists, and I commend that approach.
In preparing for today’s meeting, I had written a “Yes” against amendments 64 to 66. There are challenges but, unlike Liam Kerr, I am very happy to discuss reserved issues and say, “Best of luck trying to get changes quickly from the DWP”, because, when the DWP visited the Inverness area, the grief that is caused by universal credit was clear. The damage is still being felt.
I am interested to hear what the cabinet secretary has to say, but I am certainly minded to support amendments 64 to 66.
Rona Mackay
I thank Daniel Johnson for the important points that he has raised, and I totally agree with him on them. However, I agree with Liam Kerr on the practicalities, because I am concerned about the wider consequences of the amendments. If such conditions could not be met, would the prisoner have to remain in prison, and for how long? The provisions would have huge financial implications, which are not addressed in the amendments. All the issues should be, and could be, raised outwith the bill, but they must be considered. I totally agree with everything that Daniel Johnson has said, but I do not think that the bill is the right place to make the provisions in his amendments.
Liam McArthur
I thank Daniel Johnson for lodging amendments that go to the heart of the importance of not just aftercare but throughcare and how it integrates with what goes on in the prison estate. He has identified instances in which we have got things right—maybe not entirely, but in large part—which begs the question of why a consistent approach is not being taken across the board. He has also identified areas in which improvements could yet be made, if we were to draw on experience from elsewhere.
I question whether including that in the bill is appropriate, but nevertheless it has served to illustrate where we are falling short. Daniel Johnson’s point about reducing rates of reoffending is correct—it is about not just the welfare and wellbeing of individuals, but the safety and wellbeing of communities as a whole. Communities are ill served by pretending that releasing prisoners back into the community with none of the supports outlined in the amendments is a recipe for success.
I thank Daniel Johnson for lodging the amendments. My impression from his earlier comments was that he did not expect to press amendment 64 or move the other amendments in the group. However, he has given us an opportunity ahead of stage 3 to see whether there are ways of using the issues highlighted in the amendments to strengthen the bill.
Fulton MacGregor
I thank Daniel Johnson for lodging the amendments and I am sympathetic to his aims. I recognise that they are mostly probing amendments and that the goal was to start a bit of discussion—they have certainly done that. Most of the things that Daniel Johnson has talked about relate to operational matters, as Rona Mackay was saying, rather than things that should be included in the bill. In my experience of working in the criminal justice system, I saw some really good examples of people being prepared for release as well as some really bad examples. We need to look at the multi-agency arrangements and learn from good practice. The Inverness example could be one to look at.
The only point that I was not clear on was the need to have a driving licence or a passport. I am not sure about that. However, in general, we need to ensure that the principles behind most of the amendments run right through the operation of criminal justice.
The Convener
I, too, thank Daniel Johnson for lodging the amendments. He said that he did not intend to press amendment 64 or move the other amendments in the group, but in lodging them he has allowed us to have a crucial discussion on the important issues about the services and support that should be available to prisoners on release from prison and that are all too often not there.
Daniel Johnson mentioned the Wise Group, which steps up to the plate for the offenders that it supports: it often helps to prevent reoffending that can result from the necessary services and benefits not being in place. However, not everyone is fortunate enough to be supported by the Wise Group. I look forward to hearing what the cabinet secretary has to say. If the home detention curfew is to work properly, the resources and support must be there so that, as the Wise Group says, we do not set up prisoners for failure when they are released from prison.
Humza Yousaf
I thank Daniel Johnson for his articulation of the amendments and the context in which he has put them. I appreciate the fact that they are probing amendments. That it is important because, although he is not necessarily going to press them, the discussion that we have had in committee has been very fruitful and there seems to be little in the way of disagreement. More can and should be done in relation to throughcare support for prisoners leaving our prison estate.
I will not go into all the details about why the amendments would not quite work, because they are probing amendments, but I will touch on a few points. Before I do so, I will say that we should work closely with members on some of the non-legislative options to try to realise some of the things that Daniel Johnson is trying to achieve.
12:45We have discussed some of the issues in relation to amendments 64 to 67. Liam Kerr touched on some of the issues to do with GPs. Let me give some reassurance about the current guidance: the patient registration process is meant to be fair for all patients, including those who are leaving prison, and the guidance confirms that a GP practice cannot refuse registration if the patient cannot provide proof of ID or address. However, I accept what Daniel Johnson is saying, especially if it is informed by the Wise Group, which I hold in the highest esteem, as he knows. If that is not what is happening in practice, even though it might be the process on paper, we have to address that.
What ministers cannot do is compel an individual to register with a GP. Amendment 64 would prevent an individual’s timely release if the person had chosen not to register with a GP, which is obviously unacceptable. Liam Kerr touched on that. Another issue is that changes to the registration process might entail changes to the national GP contract. I am not persuaded that that is a proportionate response.
Notwithstanding that, there absolutely is more that we can do about the health and wellbeing of people who are leaving the prison estate.
On amendment 66, on the provision of a correspondence address, a lot of work is taking place on the sustainable housing on release for everyone—SHORE—standards. I have met Kevin Stewart on a number of occasions to discuss the matter in greater detail. Again, perhaps I can provide Daniel Johnson with written details of how we are taking forward issues to do with housing.
If the aim of amendment 66 is to ensure that a postal address is provided to enable an individual to engage with key services, I can tell Daniel Johnson that common practice allows an individual to use a friend or relative’s address or the address of a service provider such as a GP or jobcentre. I do not have details of the scheme in Ireland that he mentioned; I ask him to pass them on so that we can explore all avenues and ideas.
On amendment 67, on prisoners having a valid identification document—a driving licence, in this case—the SPS is reviewing the provision of ID for all individuals who leave its care. It has an identification process in place, which includes the provision of a standard photographic letter for individuals who are supported by throughcare support officers and do not have a form of ID. Despite what Daniel Johnson suggested, my understanding is that that letter is accepted as an appropriate form of ID by the Department for Work and Pensions, banks, GP practices and housing organisations. If Daniel Johnson, the Wise Group or anyone else has experience of that not being the case, I want to hear about that.
There are two other objections in relation to the provision of a driving licence. First, the cost is likely to be prohibitive for most prisoners. Secondly, the individual might be disqualified from holding a driving licence, perhaps because of the offence that they committed.
Although I support the intention behind amendment 129, which would impose on ministers a duty to ensure that a released prisoner
“has suitable means of financial support”,
there are probably practical and legal implications. A person might not want to apply for work or seek social security assistance. I accept that that would happen in a minority of cases, but amendment 129 provides no flexibility to manage a situation in which a person declined to consent to apply, which would mean that the prisoner could not be released. That would be a breach of the European convention on human rights.
We offer a safety net in the form of the Scottish welfare fund. An individual who leaves prison may make an application for a crisis grant to meet their immediate, short-term financial needs. However, I think that Daniel Johnson has in mind not just short-term, crisis interventions but long-term, sustainable, holistic support that will prevent the person from reoffending. He will meet no objections from me in considering how we can improve the regime in that regard. However, the way to do so would be through non-legislative means.
I ask Daniel Johnson not to press amendment 64 or move the other amendments in this group.
Daniel Johnson
I thank all members and the cabinet secretary for their constructive comments. The point of the amendments in this group is to establish core principles. It is vital that we ensure that people who leave prison have access to healthcare, an address and a means of supporting themselves. That is the best way to prevent reoffending.
I am interested in exploring ways to take these ideas forward at stage 3. This is not the last time that I will raise such issues or lodge similar amendments; I hope that there will be opportunities to do so in future. I accept what members said about the practical and operational issues to do with the amendments, but, that said, there is value in ensuring that there are legal duties and requirements, and in ensuring that a clearly understood benchmark is obtained for everyone. That is important, which is why some of these things may need to be enshrined in law, perhaps not today, but hopefully at a future point. With that in mind, I will withdraw amendment 64 and not move the other amendments in the group.
Amendment 64, by agreement, withdrawn.
Amendments 65 to 67 not moved.
Amendment 129 not moved.
Section 44
Section 44 agreed to.
Amendment 124 moved—[Humza Yousaf]—and agreed to.
Section 45
Section 45 agreed to.
Amendment 125 moved—[Humza Yousaf]—and agreed to.
Before Section 46
Amendment 126 moved—[Humza Yousaf]—and agreed to.
Sections 46 and 47 agreed to.
After section 47
The Convener
I am aware of the time. However, I intend to start the debate on the next group of amendments, which is an important group. I will allow the committee to debate the group and will put the relevant questions, then end consideration for today.
Amendment 71, in the name of Neil Bibby, is grouped with amendments 71A and 72.
Neil Bibby (West Scotland) (Lab)
Thank you convener, and good afternoon to the committee and the cabinet secretary. I wish to speak to amendment 71 in my name, which would require that an inquiry take place under section 2 of the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016, in cases in which a death is caused by a person who is subject to a curfew condition, such as a home detention curfew.
The committee is well aware of the tragic murder of Craig McClelland—a young father who was killed in a violent and unprovoked knife attack, just minutes away from his Paisley home. The man who was convicted of Craig’s murder was unlawfully at large when the attack took place, and had been for more than five months, having broken an electronic tag and violated the terms of his home detention curfew.
As the committee knows, the then Cabinet Secretary for Justice, Michael Matheson, subsequently asked both Her Majesty’s inspectorate of prisons for Scotland and Her Majesty’s inspectorate of constabulary for Scotland to conduct reviews into the HDC regime. They were described as process reviews by the Government, and were not tasked with looking specifically at what went wrong in that particular case. Recommendations were made, some of which will be acted on today, which is welcome. It was also established that there were significant failings leading up to the murder.
However, there has not been a specific inquiry into why the murder was allowed to happen and whether it could have been prevented. The shortcomings of the reviews were clearly demonstrated when Craig McClelland’s family detailed over 30 key questions that were not answered in them.
A fatal accident inquiry, which is commonplace for deaths on the prison estate, is not automatic in such cases. There is a wide range of circumstances in which a fatal accident inquiry would be mandatory, but they do not include cases in which a prisoner who is on a home detention curfew commits a murder. The Lord Advocate could use his discretionary powers to instruct that an FAI should take place, but is under no obligation to do so.
The Cabinet Secretary for Justice could have instructed an independent public inquiry, but he has said that he is not persuaded by the case. He has met Craig McClelland’s family, but has been unable to provide them with the answers that they need, or to fully explain why the system failed Craig.
I do not believe that the Government response to that tragedy has been adequate, which is why I have lodged amendment 71. The family need and deserve answers, and they should not have to plead for answers. What happened to Craig McClelland was a tragic failure of the system, and it is a disgrace that has horrified and appalled my community. That failure must be independently investigated, explained and exposed. There must be a full inquiry into the McClelland case and into all cases of that kind, whenever they occur. That should not be at the discretion of ministers or the Lord Advocate; it should be a matter of course.
My amendment 71 would ensure that when a death is caused by a person who is subject to a curfew condition, an inquiry is held under section 2 of the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016. That would apply to deaths that occurred on or after 15 January 2016 and so would include the McClelland case. An inquiry that is held under the 2016 act is presided over independently by a sheriff, and seeks to establish the circumstances of a death and to consider what steps, if any, might be taken to prevent other deaths in similar circumstances. It considers whether reasonable steps could have been taken to avoid the death, and whether there were defects in any “system of working” that could have contributed to the death in the first place.
It is therefore a type of inquiry that the family could have confidence in, and one that would serve the public interest, too. Let us be clear that ensuring that there is an inquiry into the McClelland case is absolutely in the public interest. More than 5,000 people have signed a petition demanding that an inquiry take place, and that an inquiry be automatic whenever a prisoner on HDC commits a murder.
Much of the committee’s scrutiny of the bill has centred on the home detention curfew. In the wake of Craig McClelland’s murder, you have rightly had to consider how to restore confidence in the system. I believe that the only way to restore confidence in the system is to ensure that families such as Craig’s can have confidence in that system. Right now, they do not. The system has tragically failed them: it failed Craig McClelland and it failed his three children, who are now growing up without their father.
I ask the committee to consider my amendment 71 in order to ensure that the lessons of this tragedy and any future tragedies are fully learned.
I move amendment 71.
Liam Kerr
I will be brief. I completely associate myself with Neil Bibby’s comments. He has made a persuasive and important argument, and I am grateful to him for that. He was right to lodge amendment 71, because it is right that Craig McClelland’s family, whose particular circumstances Mr Bibby detailed, and people who are involved in similar situations, get the answers that they have been denied. Neil Bibby made an important point when he said that they should not have to plead. I strongly agree with that sentiment.
I will set out the reason for my amendment 71A. Mr Bibby seeks to ensure that an inquiry is automatic when a person on an HDC commits a murder. I simply wish to extend the scope of that to cover all prisoners who are released from prison on licence. A robust inquiry should be held into every death that is caused by someone who has been released early from prison—not least, so that the authorities that are responsible for the release are answerable for what has taken place. I seek the committee’s views on that.
I move amendment 71A.
John Finnie
I am grateful to Neil Bibby for lodging amendment 71 and to Liam Kerr for lodging amendment 71A. There are a number of tragedies and, as someone who values every single human life, it would be easy for me to sit here and say that I think that the proposal is a good idea, but I happen to think that it is not.
Mr Bibby used the phrase
“as a matter of course”
and said that inquiries would be “required”. In relation to deaths in prisons, he said that an inquiry is “commonplace”. I do not know whether Mr Bibby was at the meeting when we discussed judicial discretion. I am very loth to change the current situation, although we should never say never.
Mr Kerr talked about a “robust inquiry” into deaths. Of course, every death is subject to a robust inquiry. It may well be that individual family members are not content with the outcome but, at the direction of the Lord Advocate, Police Scotland undertakes inquiries.
13:00I tried to think of what the unintended consequences of the proposal might be. It could well be that a family that has gone through the trauma of participating in a murder trial has a fatal accident inquiry waiting at the end of it. What would be the chronology of that? What would be the long-term effects? Over the years, the committee has discussed fatal accident inquiries on a number of occasions, and I have sat through a fatal accident inquiry. I have to say that at the end of an FAI there are often a lot of disgruntled people. The quest is to understand the background to a death. It is in the public interest to do so, just as we talk about prosecution being in the public interest. However, there will be complainers—because that is what they are, at that point, without a trial—who are dissatisfied.
It would be easy to keep my head down and vote for amendment 71, but we must think about unintended consequences. There will be occasions on which it is absolutely appropriate to have a fatal accident inquiry, but there will be other occasions on which it will, because of the individual case’s circumstances, be inappropriate to do so. Therefore, unfortunately, I will not support amendments 71 and 71A.
Liam McArthur
Like John Finnie, I thank Neil Bibby for lodging amendment 71. I think that he was in the room when the committee was discussing the offence of being unlawfully at large. The amendments that we discussed in that regard have strengthened the bill and have addressed some of the concerns that arose out of the tragic murder of Mr McClelland.
I support Neil Bibby’s proposal. I am conscious of the concerns that John Finnie raised and I am not deaf to them. However, our fatal accident inquiry system is not functioning as we expect it to function, which is damaging public confidence in it. Mr Bibby referred to the McClelland family’s feeling that they are pleading for a fatal accident inquiry. If decisions on such inquiries were taken in a timely fashion, the McClelland family would not be forced to feel that way. We can all draw from a number of examples of fatal accident inquiries being long overdue, with people left waiting up to a decade for one to be held. It is difficult to understand how lessons can truly be learned when such delays are built into the system.
In the event that Mr Bibby’s amendment 71 is not successful this afternoon—I suspect that it will not be—I hope that it will drive forward the process of improving the system of FAIs, which, at the moment, is broken.
Daniel Johnson
I also thank Neil Bibby for setting out very well the need for amendment 71. I would like to address John Finnie’s comments. I agree with a great deal of what he said, and I understand his points; I think that we have to be careful about unintended consequences. There is sometimes a tendency to want every decision to be the subject of inquiry and process, but that is not always helpful.
We must also always be mindful when we are looking at bills, and amendments to them in particular, of anomalies and inconsistencies. I believe that amendment 71 addresses an anomaly and an inconsistency. Throughout consideration of the bill, I have time and again stressed the importance of the need to recognise that people who are released on licence and on an HDC are out in the general public in lieu of being in prison—they are still serving their prison sentences. At the moment, there is an automatic FAI when a death occurs in prison. However, we have a situation in which, when someone who is serving a prison sentence under licence in the community commits a murder—that is essentially what we are looking at when a death is caused by someone who is out on an HDC—there is no FAI. That is an anomaly, because if that death had occurred while the person was inside prison, there would have been an FAI.
To boil things down to the crude, raw factors, I say that we are dealing with a major system failure when a person who has been released and is subject to regular monitoring—because they are still serving a sentence—causes another person’s death. In such situations, there is a dramatic, severe and critical systems failure that requires investigation and warrants an FAI. I think that amendment 71 will deal with that anomaly and ensure that an FAI always happens in such circumstances. That is important.
The Convener
I, too, think that Neil Bibby has made a powerful case in support of his amendment 71 by citing Craig McClelland’s murder, into which no inquiry was held, despite the family’s pleas for one. Therefore, I fully support amendment 71, which would provide for an automatic fatal accident inquiry when a death is caused by a person who is on curfew. It makes sense to me that amendment 71A, which would expand that provision to deaths that are caused by people who have been released on licence, should also be supported.
Fulton MacGregor
I thank Neil Bibby for lodging amendment 71 and for advocating and articulating the case so well on behalf of his constituents to the committee. As MSPs and members of the committee, we all feel the weight of responsibility arising from the tragic incident involving Craig McClelland. I know that the cabinet secretary feels it, too. It can be only small comfort for the family that the situation has had a major impact on the bill, including its being delayed and various other aspects, but I hope that a lot of good will come from it in the future.
I agree with John Finnie’s sentiments on amendment 71 and do not think that there is enough evidence, at this stage, for an automatic FAI, although I will be interested to hear what the cabinet secretary says about whether something can be done at stage 3.
Liam Kerr
Will the member take an intervention?
Fulton MacGregor
I was just finishing, but I will.
Liam Kerr
I am listening carefully. You say that there is not enough evidence “at this stage”. What evidence would you need to change that conclusion?
Fulton MacGregor
I would need evidence about unintended consequences. Perhaps the particular case that we have talked about warranted an FAI, if the Lord Advocate had decided to do that. However, as we have said about other provisions in the bill, the unique circumstances of every situation need to be looked at. As I said, I am interested to hear what the cabinet secretary will say, not just for today, but looking forward to stage 3.
Humza Yousaf
I will reflect the sentiments of members who have spoken. All of us are united in having our thoughts and sympathies very much with the family of Craig McClelland. I mentioned that when moving an earlier amendment, but I want to reiterate it.
I also thank Neil Bibby and Liam Kerr for amendments 71 and 71A. Neil Bibby and I have had exchanges that have sometimes, I regret, been difficult. Nonetheless, I do not doubt that Neil Bibby has lodged amendment 71 because he is advocating on behalf of people whom he represents.
From my perspective and the Scottish Government’s perspective, we resist amendments 71 and 71A, and I will try to articulate the reasons why. The categories of mandatory FAIs were considered and legislated for in the 2016 act, which Parliament passed with unanimous support. I accept that that is not, in itself, a reason never to look afresh at FAI arrangements in the future, but we should be mindful that the 2016 act is a recent enactment that followed a careful review by Lord Cullen and lengthy consultation and parliamentary consideration. The end result specified a mandatory FAI in the narrow circumstances of deaths in custody and deaths in the course of a person’s employment. We need to take great care before we disturb the conclusions that led to that most recent legislation.
My second point has already been touched on by a couple of members—John Finnie, in particular. When I was considering amendments 71 and 71A, I also, as you would expect, had conversations with the Lord Advocate, under whose remit FAIs fall. He was happy for me to say that he is concerned that the amendments would fetter his independent discretion and might result, for example, in a requirement to hold an FAI even when circumstances are uncontroversial and uncomplicated or, crucially—this perhaps relates to Liam Kerr’s question and Fulton MacGregor’s answer—when bereaved relatives do not want one. That sometimes already happens with deaths in custody.
Where the circumstances justify it, the Crown will undertake a death investigation and it may, in addition to any criminal proceedings, investigate any other matters that bear on the circumstances of the death, and can instruct a discretionary FAI. The Crown will always, in relation to any wider death investigation, engage with the families of victims both in the context of criminal proceedings and under the family liaison charter. There are mechanisms whereby, in appropriate cases, an investigation will be undertaken. Indeed, in the specified case—the McClelland case—the Crown will do this. If an FAI is justified in addition to any criminal proceedings, an FAI can be held, and there is no need for a statutory provision to that effect.
The ordinary course under the 2016 act is that, even in the case of mandatory FAIs, the Lord Advocate may determine that the circumstances have been adequately established in related criminal proceedings, and may determine on that ground that an FAI would not be justified. There is no equivalent qualification in amendments 71 and 71A, where it might be quite likely that there would be related criminal proceedings.
Finally, there are two points to make on drafting. First, “have caused the death” is a broad phrase that would cover deaths by homicide, deaths by careless or dangerous driving and circumstances that were wholly accidental and would not give rise to any suspicion of criminality.
Secondly, it is—as members know—most unusual to make retrospective provision in legislation, so a specific policy justification would be required. Given the existing powers to order a discretionary FAI, I am not convinced that retrospective application of the provision would be justified.
For the reasons that I have provided, I ask the members not to press amendments 71 and 71A. If they do, I urge the committee to reject them.
Neil Bibby
I thank committee members for their contributions. As I explained, inquiries under the 2016 act are an established procedure, which is presided over independently by a sheriff, for ascertaining both the circumstances of a death and whether anything could have been done to prevent it. An inquiry is mandated by the 2016 act when a death has occurred in lawful custody or while the deceased person was at work, so FAIs into deaths on the prison estate are common. If a prisoner was to die or a prisoner was to kill another, an inquiry would be mandated under the 2016 act, yet where a prisoner commits a murder in the community while being the subject of a home detention curfew, an inquiry under the 2016 act is not mandatory. That leaves families such as the family of Craig McClelland in the horrendous position of having to plead for answers about what happened and why.
A fatal accident inquiry into the circumstances that led to the murder of Craig McClelland is demonstrably in the public interest. I note that some members and the minister are not persuaded by the case, but his family are, and the public are on their side. Over 5,000 people have signed a petition in support of an inquiry and of my amendment 71.
Amendment 71 is not an onerous amendment. The only case that I am aware of since 2016 that would be covered by it is the death of Craig McClelland. However, my amendment would also ensure that any future deaths in such circumstances would be the subject of an inquiry—not at the discretion of ministers or the Lord Advocate, but as a matter of course and a matter of principle.
I heard the comments from committee members and the cabinet secretary and I note the points that they made. The Lord Advocate would in unique circumstances have a power of exemption but, generally, fatal accident inquiries are described in legislation as mandatory when there is a death in custody. They should, therefore, be mandatory in cases such as we are discussing, which would be similar to the position for deaths in custody.
On the question whether what I propose is necessary, I believe that it is, because Craig McLelland’s is a tragic case. It is actually a case study on why my amendment 71 is necessary. It is necessary because there has not been a public inquiry or a fatal accident inquiry.
It is clear from what members have said that there is not a majority on the committee in favour of the amendments to guarantee an inquiry into the McClelland case. My view has not changed: it is as strong as ever. An inquiry is essential and a change in the law is required to mandate that inquiry.
However, in the light of contributions to today’s debate, I will not press my amendment 71 today. Instead, I will reflect on the comments that have been made, look at the issues that have been raised about drafting, and at the concerns that John Finnie and others have raised, and seek to lodge an amendment at stage 3 to guarantee that the proposal is debated further. At that stage, all members of Parliament, including those who represent the McClelland family, will have the opportunity to decide whether they are prepared to vote to secure an inquiry.
13:15The Convener
I call Liam Kerr to wind up, and to press or to seek to withdraw amendment 71A.
Liam Kerr
I do not have a great deal to add to Neil Bibby’s very coherent and important contribution. A couple of points came out during the discussion. I understand Daniel Johnson’s and Neil Bibby’s point about there being an anomaly, in that there appears to be a mandatory FAI for deaths in custody but not for deaths outwith custody. That feels odd, to say the least.
I understand John Finnie’s point—the cabinet secretary made a similar point—that a family might not be in a place in which they want an inquiry. My counter-argument is that, as Daniel Johnson seemed to say, if something has potentially gone massively wrong, surely we have to understand fully what that is. An FAI would be one mechanism through which to do that. I understand the point that was made, but a failure of such significance needs investigation.
John Finnie
For the avoidance of doubt, I am not saying that an FAI would not be appropriate on occasions—indeed, it would be highly appropriate to have an FAI on many occasions. We are in an area in which tension always exists about the discretion that is afforded to the Lord Advocate, whether that discretion is related to this matter or in relation to prosecution. I am talking about the public interest versus those who are closest to the matter at hand, be they the complainer in a criminal case or the family when there has been a death. There will be instances when the family do not want an FAI. I can think of a very high-profile death into which people would like to have an FAI, but because the family do not wish to have one, it will not take place. Will the member acknowledge that that tension exists and that it would be exacerbated by making FAIs mandatory?
Liam Kerr
I understand the tension and I fully understand John Finnie’s point. Neil Bibby’s conclusion that it would be prudent to go away, reflect on some of those points and bring back the matter to Parliament is a good one. For that reason, I will not press amendment 71A.
Amendment 71A, by agreement, withdrawn.
Amendment 71, by agreement, withdrawn.
The Convener
I propose that we conclude our consideration of stage 2 amendments now. We will continue next week with the remainder of the amendments.
I thank the cabinet secretary and officials for attending.
Due to time constraints, agenda items 4 and 5 will be taken next week.
Meeting closed at 13:18.23 April 2019
Third meeting on amendments
Documents with the amendments considered at this meeting held on 30 April 2019:
Third meeting on amendments transcript
The Convener
Agenda item 2 is our continued stage 2 consideration of the Management of Offenders (Scotland) Bill. I refer members to the bill, the marshalled list of amendments and the groupings.
I welcome back the Cabinet Secretary for Justice, Humza Yousaf, and his officials. At various points in the meeting, we may be joined by other members who have lodged amendments.
After section 47
The Convener
Amendment 75, in the name of Liam Kerr, is grouped with amendment 134.
Liam Kerr (North East Scotland) (Con)
In recommendation 182 of its stage 1 report on the bill, the committee recognised that:
“Robust risk assessment procedures are critical to the effective use of HDCs and other forms of electronic monitoring. The Committee agrees with the calls made in the evidence taken about the importance of ensuring that decisions on electronic monitoring are informed by proper and appropriate assessments.”
The report goes on to note that we need more information on the risk assessment tool; indeed, I highlighted that point in my speech in the stage 1 debate. I recall the cabinet secretary’s response in what I felt was a very good debate, but I remain of the view that, before we do anything to increase the number of people on electronic monitoring, we need a robust and trusted assessment tool.
I understand, from comments made previously by the cabinet secretary, that it will take time to develop such a tool, but we cannot allow things to drag. Indeed, I have significant concerns about that. Another committee of which I am a member is looking right now at another piece of legislation that required the Scottish Government to develop a database, and, nine years later, that work has not even been started. We cannot risk that sort of outcome with this legislation.
Amendment 75 therefore requires the Scottish Government to develop a risk assessment tool, in order to press the importance of not delaying that work. It also makes it clear that the courts “must have regard to” that tool when disposing of cases, and it requires ministers to publish a report on the tool’s operation. It is the right amendment, and it is important that it goes into the bill.
On amendment 134, in the name of Daniel Johnson, I entirely see where the member is going, and I am interested in hearing his representations with regard to its operation. In principle, I think that it has a lot of merit.
I move amendment 75.
Daniel Johnson (Edinburgh Southern) (Lab)
I thank Liam Kerr for setting out his reasons for lodging amendment 75, and I have to say that I have lodged amendment 134 for entirely the same reasons, as set out in our stage 1 report and, more important, in the reports by Her Majesty’s inspectorate of prisons for Scotland and HM inspectorate of constabulary for Scotland.
There is an issue with risk assessment. There have been a number of discussions about this, and I acknowledge the cabinet secretary’s previous comments to the committee about not putting details of a risk assessment process on the face of the bill; indeed, I agree with him in that respect. However, as I told him in private, it is important that the bill makes it clear that such a risk assessment must take place, and my amendment seeks to make that happen but without being unduly burdensome, by setting out a specification for the risk assessment process and, at the same time, providing for flexibility and reflection in that respect.
My amendment and Liam Kerr’s amendment are broadly complementary. However, I have two slight issues with amendment 75, which is why I will move amendment 134.
The first issue is about language. I am not entirely convinced that formally putting a “risk assessment tool” in the bill is appropriate, given the potential for anachronism and for potentially going into too much detail, although the amendment is not overly specific.
More importantly, on ensuring that risk assessment takes place, my reading of Liam Kerr’s amendment is that, although it would require the Scottish ministers to develop a risk assessment tool, it would not require them to use it. My amendment would require the implementation of the risk assessment tool.
I will vote in support of both Liam Kerr’s amendment and mine, because mine is necessary to ensure that a risk assessment is carried out. There will be a requirement to do some tidying up at stage 3, but there is nothing in either amendment that makes them conflict with each other—they are complementary.
By establishing trust in the risk assessment process and ensuring that there is scrutiny of it, the amendments are critical to the effectiveness of the bill with regard to its intent to restore public trust in HDC, which is a vital tool for rehabilitating prisoners.
John Finnie (Highlands and Islands) (Green)
I will not support either amendment.
Like Daniel Johnson, I am concerned about some of the language that is being used. For instance, if I noted this correctly, there is already a process for risk assessment. It is important that a risk assessment takes place and that it is robust and tested. We know that almost everything in the Scottish prison system is subject to risk assessment, whether it is the movement of individual prisoners or prisoner activities. We also know that there was previously a process in place for assessing the use of HDC.
The committee was entirely right to halt its considerations pending the examination that took place. We have heard that there has been a significant change in the number of people who are granted HDC, and I think that we have introduced risk aversion to the system. I have every confidence in the Scottish Prison Service and criminal justice social workers.
I think that the amendments are well meaning, but legislation that is based on a particular incident—
Liam Kerr
Will the member give way?
John Finnie
I give way to Liam Kerr.
Liam Kerr
I hear what you are saying, but I am sure that you will accept that there appear to have been failures previously, which led to the situation that we were in. To my mind, that almost mandates us to set out the lessons learned and what should happen in the future.
I understand what you are saying about risk aversion being introduced into the system. If it is possible to swing from one approach to another, do you accept that that is not what our justice system should do? It would be far better to give a clear instruction—as my amendment 75 and Daniel Johnson’s amendment 134 seek to do—on how risk assessment should be carried out.
John Finnie
An important part of risk assessment is to continually assess the manner in which we go about it—I readily accept that. However, unquestionably, we have heard that there has been a significant drop in the number of prisoners on HDC, which is not a sustainable position. We have also heard that the risk assessment process, although broadly the same, has been altered with regard to the seniority of the individuals who ultimately make the decisions.
Daniel Johnson
I agree entirely with John Finnie. That is almost exactly why I lodged amendment 134. At the moment, because of the circumstances, there is a degree of concern about undertaking the risk assessments. One of the outcomes of setting out the principles and practice that are proposed in amendments 75 and 134 would be that it would give confidence to the SPS and the people carrying out the risk assessments, because they would know that they would have the backup of the risk assessment process as set out in amendments 75 and 134. The amendments’ proposals would do exactly what John Finnie would want to happen in terms of building confidence and seeing HDC used effectively and properly in the prison service.
John Finnie
Again, I hear what the member says, but assessing a risk and putting in place mechanisms to ameliorate it does not mean that the risk is ultimately eliminated. We will never do that when dealing with humans and relying on a point of judgment. What would take place would not be a mechanical exercise but one that would involve human beings. I do not doubt the good intent of Liam Kerr and Daniel Johnson in lodging amendments 75 and 134, but I will not support them.
Fulton MacGregor (Coatbridge and Chryston) (SNP)
I echo what John Finnie has just said. Amendments 75 and 134 seem to come from a position of no risk assessment being in place. I am sure that that is not the intention and that Liam Kerr will reflect that in his summing up. However, to me, the amendments seem to come from the position of assuming that no risk assessment is in place and that we, as parliamentarians, need to put something in place. Given my experience of working in the criminal justice system, I can tell members around the table that that could not be further from the truth, as John Finnie said.
Of course, there are robust risk assessments in place. Are they perfect? No, I do not think that anybody would suggest that, and a recent example shows that that is not the case. However, we need to trust the relevant organisations, as John Finnie said, rather than include amendments 75 and 134 in the bill and leave the matter to Scottish Government officials and ministers. I will therefore not back amendments 75 and 134.
Rona Mackay (Strathkelvin and Bearsden) (SNP)
I, too, will not back those amendments. Liam Kerr referred to giving “a clear instruction”, but I do not think that his amendment 75 would provide a clear instruction, as it is quite vague. For example, what is a “tool”? We do not know what it is or whether it is for use pre-release or post-release. The amendment is far too vague, although it is well intentioned, as Daniel Johnson said, and I can see the motivation behind it.
Again, Daniel Johnson’s amendment 134 is quite vague and would require ministers to make an unspecified provision about risk assessment. It appears to refer to individual risk assessments rather than the overarching policy of risk assessment. Picking up on John Finnie’s point about the turnaround, I do not think that it would be advantageous at this time to bring forward what amendments 75 and 134 propose.
The Convener
My view is that amendments 75 and 134 complement each other because they both seek to provide a robust assessment tool in which the public can have confidence. They require the development of such a tool in the light of the extension of HDC to individuals who would otherwise be behind bars. I note members’ comments that there are existing risk assessments, but they have been found wanting in the past and I think that we need to be very conscious of that.
Given the concern that we all share about the culture of risk aversion that seems to have developed, it seems to me that including that robust assessment tool in the bill would address that culture of risk aversion and help people to have confidence that they can use HDC as the bill intends it to be used.
The Cabinet Secretary for Justice (Humza Yousaf)
I thank Liam Kerr and Daniel Johnson for their amendments. I know that they come from a very sincere intent. Both members and you, convener, have been very consistent since stage 1, particularly after the HDC reviews, on the point around risk management, the need for robust tools and the request to have something in that regard on a statutory footing.
I am grateful that amendments 75 and 134 have been lodged. I know that what the members propose through the amendments has also been a consistent theme of conversation, discussion and debate among those from whom the committee has taken evidence. Risk assessment was discussed in some detail during stage 1, and I have previously written to the Justice Committee, setting out the activities that are currently under way in the area.
10:15On amendment 75, there was discussion at stage 1 about the merits of placing risk assessment on the face of the bill. I am still very firmly of the view that to do so would present a risk, and I believe that the Risk Management Authority has written to the Justice Committee, expressing its concerns. My usual concerns about putting things in a bill very much extend to amendment 75 because of the potential inflexibility of what is suggested. There is a better place for such an approach. However, I fully recognise why Liam Kerr and Daniel Johnson want something that has statutory underpinning. I hope that I can propose a compromise position that satisfies members’ desire for risk management being on a statutory footing but does not put such a measure in the bill. I will come to that shortly.
On the language that amendment 75 uses, the risk assessment tool is not defined in the amendment or elsewhere in the bill. The criminal justice system has a range of risk assessment tools that have been developed for use with particular groups of prisoners and in particular situations. It is not clear from the amendment what sort of risk assessment tool would be created—would it be intended to assist with the decision on releasing a prisoner or with managing risk once a prisoner was released?
A risk assessment by a governor for temporary release is very different from a risk assessment for HDC or parole. The creation of one risk assessment tool for all three distinct forms of early release would overlook the different nature of each form.
The Risk Management Authority and the Parole Board for Scotland sent the committee letters, which I will quote to emphasise the point. The fourth paragraph of the authority’s letter says that its framework for risk assessment management and evaluation
“emphasises the distinction between risk assessment and ‘tools’, in that there are a range of instruments that may contribute to a risk assessment, but none that in itself produces a risk assessment. Such tools vary greatly in their design, purpose and applicability, and there is not one that fits all situations.”
The fourth bullet point in the Parole Board’s letter says:
“The adoption and promotion of one generic tool oversimplifies the complex process of risk assessment which should be informed as appropriate by specific relevant assessment tools but should also involve wider evidence and expertise”.
That emphasises the point that I am making. Amendment 75 would duplicate existing risk assessment processes across all forms of early release, and there are existing statutory provisions that require risk assessment for the purposes of HDC, temporary release and parole. I can provide more detail in writing if that would help the committee.
The obligation in amendment 75 to develop a risk assessment tool would sit alone; no corresponding duty would be placed on any organisation to use or have regard to the tool. It would create a duty to consult certain bodies, and the implication might be that those bodies should have regard to the tool.
Daniel Johnson
If amendment 75 and my amendment 134 were agreed to, would my amendment create a duty to carry out the risk assessment?
Humza Yousaf
That could be the case, but I will come to why the drafting of amendment 134 might be a bit of a problem.
Amendment 75 does not say it specifically, but it could imply that the named bodies were to have regard to the risk assessment tool. However, one body that would have to be consulted is the Parole Board, which is completely independent of the Scottish ministers. Any implication that it was bound by a risk assessment that the Scottish ministers developed could call that independence into question, which could give rise to a challenge to the board’s decisions on parole under article 6 of the European convention on human rights, which is on the right to a fair trial. The fifth bullet point of the board’s letter says:
“Mandating a single tool could be seen as tying the hands of independent bodies and reducing the effectiveness of decision making”.
I know from public and private conversations with committee members that they greatly value the board’s independence, as is right.
There are significant drafting concerns about amendment 134—some have been referred to—that mean that it would be unworkable if it formed part of the bill. First, the obligation in subsection (1) refers to the risk assessment of an individual prisoner rather than the risk assessment process as it applies to prisoners in general. The obligation could therefore require the Scottish ministers to assess the risk posed by one prisoner rather than to create a general risk assessment process, which is not the intention behind the amendment. Furthermore, the obligation in subsection (1) must be complied with only once in the six months immediately after commencement, as the amendment inadvertently refers to an individual risk assessment rather than a risk assessment process. The Scottish Government could therefore comply with the obligation by conducting one individual risk assessment six months after commencement.
In addition, although the amendment appears to be designed to relate to HDC only, the drafting could result in the amendment applying to all forms of release from prison, whether the prisoner was released on licence or otherwise. It is not clear whether subsection (1) would oblige ministers to conduct a risk assessment for the purposes of assisting the decision to release a prisoner or to assist the management of risk once a prisoner was released.
The amendments, I know, seek to address risk, and I understand the desire to put some of that on a statutory footing. Amendment 130, in the name of the convener, might provide the opportunity to address the issue of risk more broadly and, therefore, satisfy members’ concerns. Amendment 130, which is in the next group, seeks to make the guidance on HDC statutory. I accept the principle that HDC guidance should have a statutory footing and should be laid before Parliament. The HDC guidance contains a number of different components, including the purpose of HDC, but it also sets out detail on eligibility and the consideration to be taken in assessing risk.
If Daniel Johnson and Liam Kerr are minded not to press their amendments in the light of those concerns, creating statutory HDC guidance that is to be laid before Parliament, as the convener suggests, and including some of the elements of what has been discussed by both members will, I hope, allay some of their concerns about risk. I therefore extend to them the offer that I will make to the convener when we discuss amendment 130 with the next group, which is to work with them on a stage 3 amendment that will ensure that the guidance that covers HDC will be on a statutory footing and will include the provision on risk.
I therefore request that Daniel Johnson and Liam Kerr not press their amendments. If the amendments are pressed, I urge the committee to reject them.
Liam Kerr
I am grateful to the committee and the cabinet secretary for their comments.
I will deal first with some of the comments that have been expressed by committee members. John Finnie makes an important and interesting argument, but I do not accept it. I take the point about risk aversion seeming to have been introduced, but surely the most effective way of ensuring appropriateness, fairness and consistency is to set out clearly how we assess risk and what the benchmark will be. John Finnie is quite right to say that we cannot eliminate risk, but we can surely reduce it, and the best way to do that is through some form of test such as the one that I propose.
Fulton MacGregor said that my starting point is that no risk assessment is in place, and he said that there are systems in place already. Of course, that is quite true. However, Mr MacGregor suggested that we should place our trust in the systems that already exist. With respect, that is what we were doing before, and we saw the tragic consequences that arose from that.
Daniel Johnson
I agree with much of what the member has just said, and, in terms of what Fulton MacGregor said, I accept that there was not nothing in place previously. However, paragraph 6.6 of the HMIPS report states:
“Whilst an assessment process clearly existed, it may not be regarded by some to meet the definition of ‘robust’.”
It then goes on to state explicitly the terms under which a risk assessment should be established in order to address the issue. Does the member agree that that is what our amendments seek to do?
Liam Kerr
I do agree with that, and I am grateful for the intervention. That is exactly the point that I am making.
Fulton MacGregor
Will the member take an intervention on that point?
Liam Kerr
Yes, of course.
Fulton MacGregor
I hear the points that Liam Kerr and Daniel Johnson are making. When I spoke to the amendments, I said that, of course, the risk assessment process is not perfect. As John Finnie said, we are dealing with human beings. Where we disagree is on where the power to make changes should lie. I heard what the cabinet secretary said, and I think that he has made a reasonable offer of compromise on the next grouping. I encourage the members to accept it. Nobody is saying that the system is perfect, but we disagree on how the changes can be made.
Liam Kerr
I will deal with amendment 130 in a moment. Does Mr MacGregor accept the argument, made by me and Daniel Johnson, that we should not be placing our trust in the previous systems and that there is merit in moving forward and doing something different? If so, I suggest that agreeing to the amendments might be a way of doing that.
Fulton MacGregor
I do not agree with the premise. The current system already has scope for relevant changes to be made as required. However, it does need further work, as the cabinet secretary outlined.
Liam Kerr
I am grateful for that intervention. I will move on to the cabinet secretary’s points.
The cabinet secretary referred to amendment 75 and noted that it would be difficult to design something that would cover all situations. I understand that point if we come at it from that end. However, I point him to subsection (2) of the amendment, which states:
“The purpose of the risk assessment tool is to assess the risk of an offender being at liberty to the safety of the public at large.”
That is a very different approach, which does not narrow the tool down to a particular disposal or consideration; it says that it will assess the risk to the public at large if a particular offender is at liberty. That is an all-encompassing purpose, therefore I can deal with that objection.
I am grateful to the cabinet secretary for his offer in relation to amendment 130. I see the merit in that, but I again refer him to the purpose that is set out in subsection (2) of amendment 75, which is about assessing the risk of an offender—whatever they have done and whatever situation that they are in—
“being at liberty to the safety of the public at large.”
That is the correct purpose, and that is the right end of the telescope for us to look through. For that reason, there is absolute merit in amendment 75, and I intend to press it.
The Convener
The question is, that amendment 75 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Johnson, Daniel (Edinburgh Southern) (Lab)
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Against
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
The Convener
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 75 disagreed to.
Amendment 134 moved—[Daniel Johnson].
The Convener
The question is, that amendment 134 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Johnson, Daniel (Edinburgh Southern) (Lab)
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Against
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
The Convener
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 134 disagreed to.
The Convener
Amendment 130, in my name, is in a group on its own.
Amendment 130 addresses the monitoring and evaluation of home detention curfews and licence conditions. I lodged it in response to findings from HMIPS in October 2018, which noted that where an individual’s release on HDC was made subject to additional conditions—not just electronic monitoring conditions—there appeared to be no monitoring of compliance.
The Justice Committee concluded that it did not consider that situation to be acceptable and agreed with HMIPS that additional conditions need to be accompanied by monitoring arrangements that are agreed to in advance and clearly annotated on the licence. If that is not possible, the committee recommended that serious consideration be given to not granting release on HDC. In particular, the committee noted recommendation 9 of the HMICS report, which calls on the Scottish Government to develop statutory guidance on those issues. The committee then called on the Scottish Government to consider making provision in the bill
“requiring the Government to consult on, publish and maintain guidance setting out the roles and responsibilities of relevant agencies with regard to risk assessment and monitoring of conditions relating to the use of electronic tagging and monitoring.”
10:30Amendment 130 provides that
“Ministers must monitor compliance with—
(a) the curfew condition, and
(b) any additional condition imposed ... as part of the licence”.
It also states:
“Where a condition ... has not been complied with, the Scottish Ministers may revoke the licence and return the person to prison.”
More specifically, it provides that
“after ... this section comes into force, the Scottish Ministers must publish and lay before the Parliament guidance on monitoring compliance with the conditions”.
It further provides that Scottish ministers must review the guidance and consult relevant bodies when doing the review.
I move amendment 130.
Daniel Johnson
I thank the convener for lodging the amendment. I believe that it is one of the most important amendments, because it goes to the heart of what went wrong in the tragic case of Craig McClelland. It directly addresses one of the most important points that were made in the reports by HMIPS and HMICS. If conditions are applied to people who are released on HDC, it is vital that those conditions—and any issues that are flagged in risk assessments—are monitored. That monitoring was not taking place, which is why the amendment is so critical and why I will support it.
I will touch briefly on the points that the cabinet secretary made in the debate on the previous group. I agree that amendment 130 goes some way towards addressing those points, but I do not believe that the monitoring of conditions is a substitute for addressing risk management. Nonetheless, given that the amendments on risk assessment were not agreed to, amendment 130 is absolutely vital to the bill; without it, the bill will be seriously deficient.
Rona Mackay
I understand the motivation behind the amendment, and I agree with Daniel Johnson. My reservation is that the amendment almost replicates existing legislation. Monitoring is already possible under existing legislation and the bill already gives ministers responsibility for monitoring arrangements. It would be helpful if something could be worked out in relation to the wording to accentuate and strengthen the point. However, if we agree to the amendment, we would just be replicating existing legislation.
Humza Yousaf
I have huge amounts of sympathy for large parts of amendment 130. The duty to monitor compliance with HDC conditions and the power to revoke an HDC licence if those conditions are breached are already provided for in existing legislation. However, there is some merit in the creation of statutory HDC guidance.
In October 2018, HMICS and HMIPS made recommendations in their reports on HDC in relation to the need for “an extensive review” of HDC guidance. That work has started, but it will not be concluded until we are able to take account of the changes that will be made through the bill, such as the changes to the recall powers.
We should bear in mind that placing HDC guidance on a statutory footing would not materially change the obligations that are placed on Scottish ministers or on the organisations that are tasked with delivering the HDC regime. The nature of guidance is that it is not binding, even if a duty is placed on certain persons to have regard to it. However, the statutory guidance that is prepared by Scottish ministers would require to be aimed at the criminal justice organisations that are involved in delivering HDC. As drafted, amendment 130 does not place any duty on the criminal justice organisations that are involved in delivering HDC to have regard to the guidance.
The amendment would require Scottish ministers to produce guidance that covers the monitoring of compliance with HDC licence conditions, which are just one element of the HDC scheme.
Scottish ministers already provide guidance for a range of roles and functions that are performed by different justice partners in the administration of HDC that covers more than just monitoring, and it might be possible that that guidance could form the basis of the statutory guidance that the convener is seeking.
If the convener is content not to press her amendment 130, I am happy to work with her—and, as I have said in previous discussions, with Liam Kerr and Daniel Johnson—to develop for stage 3 an amendment that would require Scottish ministers to produce statutory guidance on the administration of HDC more generally. That might address concerns that members have expressed about other aspects of HDC, such as pre-release or, indeed, post-release risk assessment.
The Convener
Amendment 130 is really important, given that, in the past, compliance with licence conditions was just not being monitored. It does not get any more serious than that, and the amendment reflects the seriousness with which the committee has taken the issue and, notwithstanding Rona Mackay’s comments, the recommendations that we have made.
On that basis, I am minded to press the amendment. However, whether it is agreed to or not, if it contains any deficiencies, I will gratefully take up the cabinet secretary’s offer to work with him on it for stage 3.
The question is, that amendment 130 be agreed to. Are we all agreed?
Members: No.
The Convener
There will be a division.
For
Johnson, Daniel (Edinburgh Southern) (Lab)
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Against
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
The Convener
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 130 disagreed to.
The Convener
Amendment 133, in my name, is in a group on its own.
Amendment 133 seeks to amend the Criminal Procedure (Scotland) Act 1995 by imposing particular conditions on restriction of liberty orders by seeking to clarify and give a better understanding of the precise location or area covered by exclusion zone conditions. Exclusion zones place restrictions on an abuser’s ability to access specific locations where their victim might be found, and the amendment gives examples of such locations, including the offender’s home, their child’s school or their partner’s or ex-partner’s workplace. The amendment also provides for other “named locations or areas” to be specified. The amendment is particularly applicable to perpetrators of domestic abuse, as it seeks to prevent such offenders from causing further distress to their victims by excluding them from various locations and places where they could confront or harass their victims.
I move amendment 133.
Rona Mackay
Again, convener, I understand why you have lodged the amendment, which might relate to concerns expressed by Scottish Women’s Aid about the use of global positioning system technology. However, as drafted, amendment 130 does not actually say that. At the moment, the court can designate a specified place from which an offender is excluded, but the amendment might actually have the effect of restricting the places from which the court can exclude an offender. I know that that is definitely not the intention behind the amendment, but the drafting is just a bit problematic.
I completely understand and have utter sympathy with the concerns raised by Scottish Women’s Aid, and, as I have said, I know that addressing them is the intention behind the amendment. However, I just do not think that the amendment is clear enough or sets things out well enough, and it might have unintended consequences.
Fulton MacGregor
I feel the same. I do not mean to be disrespectful by any means, convener, but although I get the sentiment behind the amendment, I do not understand the intended effect. Whether it is rejected or agreed to, as we move towards stage 3, I would like to hear exactly what Women’s Aid thinks about it and how the organisation’s intention can be met.
I wonder about unintended consequences. For example, the amendment is based on concerns around domestic abuse that have been raised by Women’s Aid. The criminal justice system works day in and day out to manage the issues with restriction of liberty orders that already exist in relation to coercive control, for example.
I am really unsure about amendment 133 and I am interested to hear what the cabinet secretary has to say about it, particularly if it is to come back at stage 3.
The Convener
I will make a point before I bring in the cabinet secretary because it might be helpful to him.
Exclusion zones can be very wide. A zone could be Glasgow-wide, for example. Amendment 133 tries to give examples. It does not, as Rona Mackay said, state that a place must be an exclusion zone; it concentrates on places where an exclusion zone might be targeted and seeks to bring some clarity and conciseness to the situation, which can only help victims.
Fulton MacGregor
That is exactly my point, convener. I do not know whether the argument that you are making is necessarily in the best interests of the victims of these offences. I am not saying that it is not in their best interests, but at this stage, I would need a lot more information before I could vote for amendment 133.
Humza Yousaf
I was interested to hear about the intent behind the amendment, convener. You continue to take a consistent approach to defending the rights of victims—particularly victims of domestic abuse—so I completely understand the intent behind some of what you are trying to achieve. I am just not convinced that amendment 133 is necessary or that ministers require an additional ability to prescribe specified places. I will try to reassure you that the courts already have the necessary powers and that therefore there is no need for you to press the amendment.
Courts are already able to restrict people on a restriction of liberty order from being in or going to a broad range of types of specified place; they already do so under the current radio frequency service. People can currently be restricted from a partner’s house. It does not have to be a wide geographic location when it comes to electronic monitoring; it can be a specific place. Under the current service, courts have used electronic monitoring to make local supermarkets a specified place to deter persistent shoplifters, for example.
Section 245A(2) of the Criminal Procedure (Scotland) Act 1995 says:
“A restriction of liberty order may restrict the offender’s movements to such extent as the court thinks fit and, without prejudice to the generality of the foregoing, may include provision—
(a) requiring the offender to be in such place as may be specified for such period or periods in each day or week as may be specified;
(b) requiring the offender not to be in such place or places, or such class or classes of place or places, at such time or during such periods, as may be specified”.
Those are already broad powers.
The GPS monitoring capabilities, when introduced, will simply change the ways in which specified places are monitored. We do not see any need to change how specified places are defined. Indeed, there is a significant risk that, in seeking to prescribe the places that can be specified in a restriction of liberty order, amendment 133 might be seen as limiting the power of the court to specify only those places that are prescribed.
We are unsure why the ability to prescribe the places that may be specified in a restriction of liberty order, if that were to be beneficial, would not extend to other forms of electronic monitoring such as monitoring of licence conditions or of sexual offences prevention orders. Overall, the bill has largely sought to leave untouched the underlying orders that can be electronically monitored, as to do otherwise risks opening up a number of unintended consequences that we have not had the opportunity to consider as part of the evidence taken on the bill to date. On that basis, I cannot see a clear benefit from the amendment, although I completely respect, sympathise with and understand the intent behind it.
My officials have had conversations with a number of organisations that represent women, particularly victims of domestic abuse, and although they have raised concerns about the bill, I understand that they have a detailed understanding of what can be done under current legislation with restrictions through electronic monitoring.
I urge Margaret Mitchell not to press amendment 133; if the amendment is pressed, I urge the committee to reject it. If the amendment is rejected, I am more than happy to work with Margaret Mitchell—and any other members or stakeholders—before stage 3 to give her confidence that we have in place the necessary powers to protect vulnerable individuals, particularly victims of domestic abuse.
10:45The Convener
This is an area in which all members work together for the greater good. Amendment 133 would provide flexibility—a specific place could either be prescribed or not. I note that the cabinet secretary said that the amendment might be unduly restrictive on offenders but, currently, exclusion zones can be citywide, which is not the most effective use of the provision in protecting the victim or treating the offender in a proportionate way.
I am minded to press amendment 133. My attitude to sexual offences is that we do as much as possible and take a belt-and-braces approach, which amendment 133 provides for. There will be an opportunity before stage 3 for relevant organisations to come forward if they have any doubts or reservations about the amendment. No one has come forward with such doubts since I lodged it, although that is not to say that that will not happen before stage 3.
If the amendment falls, I will very willingly take up the cabinet secretary’s kind offer to work with me to see whether something else could be put in at stage 3. However, as it stands, I think that it is a good amendment that would increase protection for all victims, particularly victims of sexual offences. I press amendment 133.
The question is, that amendment 133 be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Against
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
The Convener
The result of the division is: For 2, Against 7, Abstentions 0.
Amendment 133 disagreed to.
Section 48 agreed to.
Section 49—Commencement
Amendment 72 not moved.
The Convener
Amendment 76, in the name of Liam Kerr, is grouped with amendments 76A and 80.
Liam Kerr
My view is that monitoring and responding swiftly and visibly to breaches are essential to public safety, and I am sure that the committee accepts that proposition. However, monitoring and swift and visible responses require sufficient resources to be in place, so amendment 76 would require the Scottish ministers to prove that resources are in place before the bill comes into force.
When considering various amendments at stage 2—for example, amendments 78 and 131—we have talked, rightly, about the need for resources. Many aspects of the bill will be resource intensive, so we must get it right. The implication of voting down amendment 76 is that we do not think that we should ensure that resources are in place before passing the bill. That would be somewhat irresponsible and it is not a course that I commend to the committee.
I will support amendment 76A, in the name of Daniel Johnson, as it provides extra clarity to amendment 76, for which I am grateful.
Amendment 80 would set a threshold for community payback order completion rates. What the Scottish Government is proposing in the bill will result in the considerable expansion of the use of community sentences and, in particular, community payback orders. That comes at a time when—the cabinet secretary will clarify my statistics if I am not spot on, but I think that I am—three in 10 community payback orders are not completed. Given that context, amendment 80 requires a modest improvement to the completion rate for community payback orders in the criminal justice social work statistics.
Fulton MacGregor
In his preparation for today’s proceedings, did the member give any thought to, or do any research on, some of the reasons why community payback orders are not completed, or is he interested simply in the statistic of three in 10?
Liam Kerr
Of course I have done research on why CPOs are not being completed. However, the bald fact is that the completion rate for CPOs stands at 69.7 per cent, which is a rate that has remained virtually unchanged for around three years. What I am suggesting through amendment 80 is that if we do not have a basic improvement in that completion rate—if we do not have a threshold and hold ourselves to a higher standard—we can have no confidence that community payback orders are a robust alternative to prison sentences and, perhaps more important, neither will the Scottish public.
Daniel Johnson
I have a great deal of sympathy with what the member says about ensuring that non-custodial sentences and community payback orders are effective and seeking improvements in that regard. However, does setting a hard threshold not run the risk of creating aversion from such sentences, which would run counter to the intent behind setting the threshold? What is the rationale for choosing a threshold of 80 per cent?
Liam Kerr
I do not accept that setting a hard threshold would prevent our holding ourselves to a high standard. If such a threshold caused aversion to using CPOs, then that should be the right thing to do, because CPOs are clearly not working. Three in 10 are never completed and, unless we hold ourselves to a higher standard—
John Finnie
Will the member take an intervention?
Liam Kerr
Yes.
John Finnie
I am not minded to support amendment 80, as I am sure you would predict. However, can you share the extent to which the information that you gleaned explains why there is that level of non-completion? What did you learn are the important factors in that?
Liam Kerr
For a start, I go back to the point about resourcing that I made for amendment 76. Although I hesitated to say that they are underresourced, Mr Finnie is well aware that an awful lot of the agencies that are in place to help people and assist them in completing various programmes have suggested that their funding models and the amount of funding that they get preclude there being a higher completion rate in the programmes. All that information is out there and perfectly available.
Returning to Daniel Johnson’s point about why I propose a threshold of 80 per cent, I say that it would set a higher standard but would be only a modest increase, as it would be only about 10 per cent higher than the current completion rate of 69.7 per cent. I suggest that we need to give the public confidence that the increased use of community payback orders is the right thing to do. As part of the evidence that the committee has heard, Victim Support Scotland told us that communities have no faith in community sentencing. My view is that amendment 80 could help to address that situation, because the data would show that community sentences are robust and genuine alternatives.
Anticipating where the cabinet secretary will go on this matter, I accept that the rehabilitation of criminals is vital, but it must never override public safety or real justice for victims of crime. Community sentences therefore have to be robust, intensive and strictly monitored. If we do not push for the improvement of completion rates, we send out the message that it is acceptable for three in 10 offenders on community payback orders to go unpunished, unrehabilitated and undeterred.
I accept that a threshold of 80 per cent puts pressure on the system to deliver—that picks up on Daniel Johnson’s point. It also puts pressure on us to be confident that it is right to put more people into that system and that the system can cope. However, I am sure that that is an appropriate principle and I am sure that the committee will vote for that.
I move amendment 76.
Daniel Johnson
Amendment 76 is welcome because much of what is contained in the bill is reliant on resourcing. We have discovered from the evidence that we have taken and from the tragic events that have occurred that interagency working is particularly important. I concluded that the police and local authorities have a pivotal role in ensuring the ability to monitor conditions and carry out the regimes, so the resourcing of those bodies is hugely important, and that is why I felt that it was important to specify them in amendment 76. It is all well and good to put obligations and duties on bodies, but it would be dangerous not to provide them with the resources to carry out those duties.
I have a brief point to make on amendment 80. Legislation should avoid being anachronistic. I think that Mr Kerr is not being ambitious enough. I would hope to get to a point where 80 per cent is an absurdly pessimistic threshold for the completion of community payback orders. I say that partly in jest, but partly because it is potentially unhelpful to set an arbitrary threshold that we should be seeking to move well past.
I agree with the sentiment that we must look to measures to improve the effectiveness and success of the orders, but I do not believe that amendment 80 does that.
Liam McArthur (Orkney Islands) (LD)
I entirely agree with Liam Kerr that the issue of resources will be intrinsic to the success of the measures that the bill introduces. However, I depart from him entirely in the suggestion that voting against amendment 76 would somehow send a signal that the committee does not subscribe to that view.
We will all have debates at various stages about whether different aspects of the criminal justice system are properly resourced. However, I cannot see the benefit of amendment 76, albeit with the clarification from Daniel Johnson. We will have robust discussions on the resourcing of different elements of the criminal justice system, which is right and proper. However, as a result, we will all take a different view on whether the community measures are appropriately resourced. Agreeing to amendment 76 would put us at serious risk of leaving ourselves in suspended animation and being unable to implement any measures at all.
Liam Kerr
I understand the point that the member makes. How does he propose to ensure that there are sufficient resources in place and that someone is making an assessment of that, using whatever threshold we decide?
Liam McArthur
We will use the powers that we have as parliamentarians to hold the Government to account. There is a financial memorandum attached to the bill, which should give effect to the bill’s provisions, and we have an opportunity at every budget cycle to hold the Government’s feet to the fire. If areas of the criminal justice system are not appropriately resourced, it is up to us to take the Government to task, based on the evidence that is available.
I suspect that we will see patchy, inconsistent application of community-based measures across the country. That will be the result of a variety of factors, some of which may be to do with resources and some of which may be to do with the attitudes of individual sheriffs and judges. We will continue to have that debate, but it would not be aided by the committee passing amendment 76.
11:00On amendment 80, I agree entirely with Daniel Johnson. It locks us into a self-defeating exercise, and as for the notion that three in 10 of those on CPOs are, as Mr Kerr continues to say, unpunished, unrehabilitated and undeterred, I think that, on the basis of the evidence that he has presented to the committee to substantiate his claims, it is hard to fathom and hard to justify. Putting that kind of rigidity into the bill runs counter to what we know to be the case, which is that, very often, a period in prison is self-defeating as far as rehabilitation and reducing reoffending are concerned.
I cannot understand the logic behind amendment 80, and I will certainly be voting against it.
Fulton MacGregor
On amendments 76 and 76A, Liam McArthur has already highlighted the points that I wanted to make, and I will not be supporting them.
I want to concentrate my remarks on amendment 80. I am sorry, but I have to tell my colleague Liam Kerr that I honestly just cannot fathom it. It shows not only a complete disregard for the criminal justice system, particularly the social work aspect of it, but perhaps even a lack of understanding of it. First, he wants to play a numbers game. Some people might argue that 70 per cent is a pretty good success rate, given what some individuals who find themselves in these situations are having to deal with.
Mr Kerr did not answer the questions that John Finnie and I asked about the reasons for not completing these orders, so I will give him some. People are having to deal with very complex mental health difficulties, very complex drug and alcohol difficulties or very complex issues of poverty, such as having to go to food banks or being in the throes of austerity. All those things need to be taken into account, and it does not help in the slightest simply to throw out figures.
On the issue of moving from 70 to 80 per cent—
Liam Kerr
Will the member give way?
Fulton MacGregor
I will make a wee bit of progress, and then let Liam Kerr in. I should point out that he will also have the chance to sum up.
On moving from 70 to 80 per cent, why, as Daniel Johnson has asked, is Liam Kerr not going for 100 per cent? Then, at least, his argument would be consistent.
Liam Kerr
Of course I understand the reasons that the member has highlighted, but my point is that statistics show that 69.7 per cent of orders are completed. I do not understand why we do not have the ambition, coupled with proper resources, to say that the situation could and should be better before we start pumping more people into the system.
Fulton MacGregor
That is where Liam Kerr is showing a lack of understanding of the system. If we are to give people the opportunity to be rehabilitated in the community, which I think that everyone around the table is supportive of and on which a lot of work is being done in our communities and through the Scottish Government, we have to understand that the patterns of offending are complex and are linked with some of the issues that I have already highlighted.
I strongly encourage Liam Kerr not to move amendment 80, because I think that he has got the whole mood totally wrong. Even just talking like this sends us down a dangerous road for community justice. I know Liam personally, so I know that that is not his intention, but I have to say that it represents the start of a slippery slope down to the removal of community justice as a key feature of what the Government is doing. I cannot fathom why he has gone down this road, and I will definitely—100 per cent—not be supporting it.
The Convener
I remind members that our stage 1 report said:
“in relation to financial matters, the Committee emphasises that an increased use of electronic monitoring will only be successful if adequate budgets are put in place for criminal”
justice
“social work and the wider services that support people subject to such monitoring. These include help with housing, employment”
and so on.
“A failure to make available sufficient resources will hinder the effective use of electronic monitoring, failing the individuals involved and potentially increasing risks to the wider society. Additional resources may also be required to keep any use of electronic monitoring compliant with ... data protection rules.”
It seems to me that this amendment is about that resourcing. Key to the legislation’s success is ensuring that adequate resources are put in place for things such as community payback orders; indeed, that was made clear to us even before we began our scrutiny of the bill.
In an ideal world, we would want 100 per cent compliance but, as Fulton MacGregor said, there are reasons why we do not get that. It could be unintended consequences. It could be because people have drug addictions or live chaotic lifestyles. However, in seeking to give a community payback order, I would expect all the circumstances of the individuals who are being considered to be known and provided for. We are not setting them up to fail, although I am afraid that that is what is happening at the moment, and resources are very much a reason for that failure.
These amendments are key to ensuring that people are not set up to fail and that the legislation will work as it is intended to work. As Daniel Johnson said, to do that, we need the co-operation of intergovernmental agencies and organisations, and voluntary organisations, all of which must be adequately resourced.
Humza Yousaf
I thank members for their explanations of their amendments. It will be no surprise to them, however, that I do not support the amendments and will ask for them not to be pressed. That was a really good discussion to listen to—in particular, the points that were made by Liam McArthur and Fulton MacGregor.
I will go into some of the substance of the amendments, but before I do that, perhaps I can talk about amendment 76 making commencement regulations subject to affirmative procedure. That is not the correct approach. Commencement regulations are typically not subject to procedure for good reasons of principle and practice. Parliament considers, scrutinises and debates the provisions of the bill during its passage through Parliament. It would not be useful to have that debate again using subordinate legislation procedure. Commencement regulations are a mechanism for giving effect to legislation that Parliament has already passed. Commencement regulations do not contain policy changes but are tools to deliver the policy that is contained in a bill.
To constrain the Scottish ministers’ powers to commence parts of legislation that Parliament has already approved strikes at the core of any act. It is extremely rare in statute to have placed on ministers a requirement for commencement. The placing of any condition on commencement would mean that there was a risk of putting in jeopardy potentially all parts of the bill, including on issues such as parole and spent convictions that seem to be unrelated to the policy that is being linked to amendment 76 on commencement.
To seek to tie commencement to community payback order completion rates is an approach that I find unusual. I understand the desire of Liam Kerr and other members to see greater rates of completion. I am also committed to that, but I thought that Fulton MacGregor’s intervention was particularly well made, and articulated very well how anybody who has spoken to people who deliver community payback orders will know that they often deal with people who have chaotic lifestyles. People who have had chaotic lifestyles, who have gone through a CPO and have managed to transform their lives and be rehabilitated—I have spoken to many of them—will tell you that their journey was not linear. It can often be one step forward and two steps back, and can have peaks and troughs.
I will come back to the point about resources, but to believe that simply throwing money at the problem will see increased completion does not, I am afraid, take account of the evidence or the lived experience of people who have gone through CPOs.
The Convener
It is not about “throwing money” at it. What I am talking about would go beyond that to provide support and personnel for when it looks as though people are failing, in order to get on top of that at the first available opportunity. It is about making the necessary arrangements to adjust the terms of a community payback order to ensure that the person can comply. Such provision is not available at the moment, and that is often because criminal justice social work and others who do monitoring do not have the resources to do it.
Humza Yousaf
I respectfully disagree on a couple of points. It is important for me to say that we have ring fenced the budget for criminal justice social work. Also, in advance of passing the presumption against sentences shorter than 12 months, we have increased the budget for local authorities to address that issue.
However, even if we were to double the money that went into the hands of those who deliver community payback orders, there would still be some people who would not complete them because of their chaotic lifestyles, as was articulated well by Fulton MacGregor. I do not devalue the desire for improvement in completion rates for community payback orders, but amendment 80 is not the way to achieve that.
The Convener
Just recently, the Government announced additional funding for prison mentoring. Was that an example of
“throwing money at the problem”
or of addressing the issue and making sure that legislation is working to encourage rehabilitation?
Humza Yousaf
I am not suggesting that there is not an issue around resources. Understandably, people will always want more resource, so resource is a part of the issue. I am simply making the point that, even if we were to double or quadruple the budget, there would still be people who do not complete their CPOs because of their chaotic lifestyles—as was articulated well by Fulton MacGregor—and because rehabilitation is not always a linear journey. That is not a reason to dismiss the entire system. I respect that Liam Kerr and the convener are not doing that, but amendment 80 is the wrong approach to take. Placing a condition on commencement in relation to CPO completion rates is not the correct approach, in general.
In respect of the framing of amendment 80, there are some issues that would make it unworkable in practice. It would prevent commencement until the Statistics Board, which has functions and powers under the Statistics and Registration Service Act 2007, produced and published statistics on CPO completion rates. Crucially, the board is not required to produce statistics on CPO completion rates, and the 2007 act does not enable us to compel the board to produce such statistics, which could mean that we would be prevented from commencing, even if the Scottish Government’s own statistics showed the requisite levels of CPO completion rates.
Amendment 80 would also make commencement contingent on the Scottish Government placing before Parliament a report setting out why we consider that sufficient resources are in place for the other provisions. Parliament has already considered and approved the financial resolution for the bill, and we have discussed the uncertainty that always exists when justice services have to interact with sentencing, which is necessarily dependent on the behaviour of those who pass sentences.
In the financial memorandum, we set out illustrative costs that would apply and would depend on how electronic monitoring is used by courts. We have set out the budget increases that we have made in this area, including for social work services and the electronic monitoring budget line. We have also made it clear that development of the service will be done through piloting new technologies. At the point of setting up pilots, we can consider the specific funding that might be required to enhance and roll out services further.
There is an important principle, which Liam McArthur touched on, about not seeking to separate out budget allocations in that way. It is the responsibility of the Scottish Government to allocate its budget across all policy and legislative commitments, and the annual budget process allows detailed scrutiny of decision making, in that respect. Seeking to separate out and consider budgetary provision act by act would be a departure—but not a welcome one—from that established practice.
Amendment 76A seeks to assess the impact of provisions prior to commencement. That, too, seems to put at risk commencement of some elements of the bill that have hitherto enjoyed positive support from members. The bill process is how Parliament assesses anticipated impacts. Requiring the Scottish ministers to assess actual impacts as a condition of commencement seems to be an almost impossible condition to fulfil and would prevent any part of the bill from being commenced.
I urge members not to press the amendments in the group and I ask the committee to vote against them if the amendments are pressed.
Liam Kerr
I am grateful to committee members and the cabinet secretary for their comments, which have provided much food for thought. Having said that, I will address a couple of important points.
First, the cabinet secretary referred to Liam McArthur’s point about the annual budgeting process. I understand the point, but I do not accept that the process necessarily works. If it did, there would not be departments and services saying that they simply do not have enough funding—and saying it consistently, every year. I accept the point, but I am not convinced that it is a reason not to accept amendment 76.
11:15Liam McArthur
I was not arguing that we do not have a responsibility to monitor the situation and hold the Government to account—probably through the annual budget cycle. As I did at stage 1, Liam Kerr voted in favour of the bill, along with the financial memorandum, which expresses the estimated costs. As the cabinet secretary said, there is an element of estimation that can be borne out only once legislation meets reality. At that point, it will be incumbent on the Justice Committee, in particular, to hold the Government to account and ensure that the necessary resources are in place. However, it seems to me that an amendment that would front load the process is the wrong way to do that. That would also be a departure from the vote at stage 1, in which Parliament accepted the financial memorandum.
Liam Kerr
I am grateful to Liam McArthur for those comments. I will muse on them as I speak to amendment 80.
A more substantive point was made by Fulton MacGregor, who suggested that amendment 80 would be
“a slippery road down to the removal of community justice”
I fundamentally reject that point. He said it as though that would be my personal preference, so I will respond on that basis. I absolutely support community justice. My point is absolutely simple: we must resource community justice properly, otherwise we are, as the convener said, setting it up to fail. Whatever “resource” is taken to mean—whether it is financial or relates to provision—we will set up community justice to fail if we do not properly resource it.
I lodged amendment 80 because I believe that we can do better. If we support community justice properly and improve the outcomes before we introduce further electronic monitoring, we can hold ourselves to a higher standard. I am fully in support of community alternatives, but we must fund them properly to ensure that they are the right interventions for the challenges—which was raised by Fulton MacGregor and John Finnie—and so that we deal with the chaotic lifestyles that the cabinet secretary referred to in order to ensure that the outcomes are increasingly delivered.
Fulton MacGregor asked why I did not set the completion level at 100 per cent. The cabinet secretary answered that point correctly and succinctly: some people will not complete CPOs and there will be some people who cannot complete them. He was absolutely right to say that.
Fulton MacGregor
I want to make it clear that when I spoke earlier, I said that I did not think that Mr Kerr personally wants to dilute community justice in Scotland. However, I make the point again that that is where everything starts—at the level of policy, ideology and changes. I predict that even talk at a committee such as ours could start to dilute the importance of community justice and lead to more punitive approaches. That is my view on the direction of amendment 80.
Of course criminal justice social work must be fully funded. Criminal justice social work has been funded even in a climate of diminished Government funding capacity. Most people in the criminal justice sector believe that there has been a reasonable settlement.
Humza Yousaf
The point that Fulton MacGregor made about ring fencing of the budget for Community Justice Scotland is correct and there is additional money for the electronic monitoring line in the budget. Does Liam Kerr have in mind a figure that would satisfy him that the partners who deliver our community sentences have sufficient resource?
Liam Kerr
No, I do not have a figure in mind, because that exercise would require the resources of the Scottish Government to assess the landscape, the requirements of the sector and what needs to be put in place. For the Government to say, “This is what we need. These are the specific resources—cash, discipline, personnel—to deliver the service and the extra 10 per cent uplift” is what my amendments cry out for.
I hear what Fulton MacGregor said. He concluded, and is concerned that, the possible consequence of the amendments in the group would be that they would
“dilute ... community justice and lead to more punitive approaches.”
I argue that the effect would be the exact opposite of that. I think that we agree that the right approach to take is exactly contrary to that position.
I have listened carefully to the debate on my two amendments. I will speak first to amendment 80, about which the cabinet secretary made the practical point—if I heard him right—that it would, if agreed to, prevent crucial sections of the act being commenced by virtue of the unlikely, but possible, event that the Statistics Board did not produce statistics that it is not mandated to produce. I am persuaded that that challenge is reasonable, so for that reason it would not be competent for me to press the amendment.
The Convener
We will come to that when we deal with your amendments. Daniel Johnson will wind up on amendment—
Liam Kerr
I have not dealt with amendment 76, which concerns resources. Again, I have listened to the debate closely and listened carefully to what Liam McArthur said. He made a reasonable and good point, on which I would like to have more time to muse. At this stage, I think it best that I do not, if I am so permitted, press that amendment.
The Convener
Daniel Johnson will wind up on amendment 76A.
Daniel Johnson
I press amendment 76A.
The Convener
The question is that amendment 76A be agreed to. Are we agreed?
Members: No.
The Convener
There will be a division.
For
Johnson, Daniel (Edinburgh Southern) (Lab)
Kerr, Liam (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Against
Finnie, John (Highlands and Islands) (Green)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
The Convener
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 76A disagreed to.
Amendment 76, by agreement, withdrawn.
Amendment 80 not moved.
Section 49 agreed to.
Long Title
Amendments 68 to 70 not moved.
Amendment 127 moved—[Humza Yousaf].
The Convener
The question is, that amendment 127 be agreed to. Are we all agreed?
Members: No.
The Convener
There will be a division.
For
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Against
Finnie, John (Highlands and Islands) (Green)
The Convener
The result of the division is: For 8, Against 1, Abstentions 0.
Amendment 127 agreed to.
Long title agreed to.
The Convener
That ends stage 2 of the Management of Offenders (Scotland) Bill. The bill will now be reprinted as amended at stage 2.
Parliament has not yet determined when stage 3 will be held; members will be informed of that in due course, along with the deadline for lodging stage 3 amendments. In the meantime, stage 3 amendments can be lodged with the clerks in the legislation team.
I thank the cabinet secretary and his officials for attending.
11:25 Meeting suspended.11:29 On resuming—
30 April 2019
Additional related information from the Scottish Government on the Bill
Revised explanation of the Bill (Revised Explanatory Notes)
More information on the powers the Scottish Parliament is giving Scottish Ministers to make secondary legislation related to this Bill (Supplementary Delegated Powers Memorandum)
Stage 3 - Final amendments and vote
MSPs can propose further amendments to the Bill and then vote on each of these. Finally, they vote on whether the Bill should become law
Debate on the proposed amendments
MSPs get the chance to present their proposed amendments to the Chamber. They vote on whether each amendment should be added to the Bill.
Documents with the amendments considered at this meeting on 25 June 2019:
Debate on proposed amendments transcript
The Presiding Officer (Ken Macintosh)
The next item is consideration of the stage 3 proceedings on the Management of Offenders (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, the marshalled list and the groupings of amendments.
I remind members that the division bell will sound, and that proceedings will be suspended, for five minutes for the first division of the afternoon. After that, there will be a 30-second vote. Thereafter, there will be a one-minute period for voting after the first division following a debate. Members who wish to speak in a debate should press their request-to-speak buttons as soon as I call the group, or as soon as possible after that.
Section 1—Requirement when disposing of case
The Presiding Officer
Group 1 is on part 1 terminology. Before I call the cabinet secretary, I point out that, throughout the group, there are amendments that, if agreed to, would pre-empt other amendments in the group. In the interests of time, I do not propose to mention the pre-emptions on each occasion that they occur—I refer members to the groupings for pre-emption information. Amendment 4, in the name of the Cabinet Secretary for Justice, Humza Yousaf, is grouped with the amendments as shown.
The Cabinet Secretary for Justice (Humza Yousaf)
At stage 2, I supported Daniel Johnson’s amendments, which removed the term “offender” from part 1 of the bill. The Government listened to the concerns that were expressed and supported the changes so that nobody would feel stigmatised by the language of the legislation. At stage 2, when I signalled that I supported the principle behind Daniel Johnson’s amendments, I indicated that the Government would need time to reflect on the technical impact on the drafting of the bill, and that it might need to revisit the terminology for readability and workability.
As things stand, the label “relevant person” does not work, because it is undefined. As we reflected on how to address that problem in a way that would be consistent with the Justice Committee’s view at stage 2, we realised that there is, in fact, no need at all for the bill to apply labels to people who are subject to electronic monitoring. We need not call them “relevant persons”; they are simply persons who happen to be subject to a monitoring requirement. The amendments in my name therefore get rid of the labels altogether, with only a few exceptions where the label “monitored person” is used to distinguish the person who is subject to a monitoring requirement from the person who is designated to carry out the monitoring.
Amendment 145 is a clarificatory amendment to put beyond doubt that references to disposals in part 1 are not confined to the final disposals in a case.
I invite members to support the amendments in my name in the group, and to reject the amendments from Liam Kerr, which would reinstate the word “offender” in direct contradiction of the decision of the Justice Committee at stage 2. To be clear, using the label “offender” does nothing to improve the bill’s technical precision and has no other legal effect.
I move amendment 4.
Liam Kerr (North East Scotland) (Con)
All my amendments in the group seek to reverse Daniel Johnson’s terminology amendments at stage 2. Parliament cannot fail to have been aware of the considerable public outcry when those amendments were agreed to at stage 2. It is important that the full chamber has an opportunity to reflect on the committee’s decision.
This is the Management of Offenders (Scotland) Bill. Its purpose is to deal with people who have offended—that is, committed a crime. Laws mean something and they should be clear. If we are referring to offenders, we should call them “offenders”. Parliament will be interested to know that the key argument that was presented in committee is that labelling people as offenders after they have served their time does not help rehabilitation. I understand that point. However, most of these provisions deal with criminals before they have completed their sentence. The bill talks about how we manage those who are in the system, not so much those who have completed their sentence.
Liam McArthur (Orkney Islands) (LD)
Will the member take an intervention?
Liam Kerr
As I presume that Mr McArthur will speak later, I will not—I want to move on.
Finally, there is no doubt that many victims of crime already feel that more is being done to support offenders than to support those who have suffered. We cannot, and should not, airbrush from history the fact that a crime—an offence—has been committed. For those reasons, I ask Parliament to recognise that an offender is an offender, and to vote in favour of my amendments.
I move amendment 4A.
Daniel Johnson (Edinburgh Southern) (Lab)
Given that my amendments at stage 2 created this, I feel something of a responsibility to speak up for myself. However, I will be very brief; indeed, I will try to limit myself to a self-imposed 60-second rule throughout the stage 3 amendment debate.
Members: Hear, hear!
Daniel Johnson
As the cabinet secretary said, labels do not help. Good legislation should have well-defined terminology and should not need to refer to people by anything other than the term “people”. For that reason, we should support the Government’s amendments and reject the Conservative ones.
The Presiding Officer
Thank you very much. That was a very popular comment from Mr Johnson.
Liam McArthur
I was not intending to observe the 60-second rule. I was not even intending to speak until Liam Kerr’s invitation to do so.
The point that was made by the cabinet secretary and Daniel Johnson about stigmatisation is fair and valid. It reinforces what we heard in evidence sessions throughout our consideration of the bill.
The other important fact is that extending these provisions to people prior to any ruling from the court would be impossible were it not for the redefinition that the cabinet secretary has proposed. We will certainly support his amendments.
15:00John Finnie (Highlands and Islands) (Green)
I endorse the comments of the cabinet secretary and those of my colleagues Daniel Johnson and Liam McArthur. The term “airbrush” is pejorative, and it was meant as a pejorative term. I most certainly will not support Liam Kerr’s position.
Humza Yousaf
I have nothing much to add other than to thank colleagues for their contributions.
I will say to Liam Kerr something that I have said since taking on this role a year ago—we should always be driven by the data and by the experts who are in front of us. I know that he has a lot of respect for organisations such as the Wise Group and the many other groups that work with those who have committed crimes in the past. Those groups tell us that language is important. This change in the legislation will not make it illegal or criminalise anybody for using the word “offender”; they can use that word in their daily discourse if they wish to do so. However, as legislators, we have a responsibility to listen to experts and to change the law accordingly. I am delighted to have the support of—it seems—the majority of parliamentarians to do that.
Liam Kerr
Like the cabinet secretary, I do not have a great deal to add other than to say that I accept the point that language is important—that is why we must call it as it is. For that reason, I will press amendment 4A.
The Presiding Officer
The question is, that amendment 4A be agreed. Are we agreed?
Members: No.
The Presiding Officer
There will be a division. As this is the first division of the afternoon, we will suspend for five minutes while I summon members to the chamber.
15:02 Meeting suspended.15:07 On resuming—
The Presiding Officer
We move to the division on amendment 4A.
For
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 26, Against 84, Abstentions 0.
Amendment 4A disagreed to.
Amendment 4B moved—[Liam Kerr].
The Presiding Officer
The question is, that amendment 4B be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 27, Against 85, Abstentions 0.
Amendment 4B disagreed to.
The Presiding Officer
Amendment 4 pre-empts amendments 5 and 6. I ask the cabinet secretary to say whether he wishes to press or withdraw amendment 4.
Humza Yousaf
I press amendment 4.
The Presiding Officer
The question is, that amendment 4 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)
Against
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
The Presiding Officer
The result of the division is: For 85, Against 27, Abstentions 0.
Amendment 4 agreed to.
The Presiding Officer
Before I move on to amendment 7, I point out that there are a huge number of amendments that pre-empt other amendments. At this point, I ask Mr Kerr to say whether he wishes to move amendments 8, 10, 12 and 14.
Liam Kerr
With your permission, Presiding Officer, I will speak in response to that, rather than just say yes or no.
Those amendments in my name seek to make the same changes as amendments 4A and 4B sought to make. I maintain that that is the right thing to do for certainty and semantics, but it is clear to me that only the Scottish Conservatives are with me on that. There are extremely important debates to have this afternoon so, to ensure that there is time for that and given that my comments on amendments 4A and 4B are on the record, I will not move my further amendments in the group or any similar ones.
The Presiding Officer
Thank you, Mr Kerr. I highlight that any other member is entitled to move any of the amendments at the point at which they are reached. To ensure that that can happen, I would normally call each amendment in turn but, in these exceptional circumstances in which we have a large number of amendments that are all directed at the same issue, I propose to try to speed up the process slightly. The amendments about this particular subject appear in five blocks, and I will take the same approach for each block of amendments.
Does any other member wish to move any of the amendments 8, 10, 12 or 14?
Members: No.
The Presiding Officer
As no one wishes to move any of those amendments and they all do the same thing, I now invite the cabinet secretary to move amendments 7, 9, 11 and 13 en bloc.
Amendments 7, 9, 11 and 13 moved—[Humza Yousaf]—and agreed to.
The Presiding Officer
Group 2 is on availability of information to social work when court disposing of a case. Amendment 144, in the name of Liam Kerr, is the only amendment in the group.
Liam Kerr
I have resubmitted this amendment to allow Parliament to consider its position. The principle founds upon the fact that, during stage 1 evidence, a Social Work Scotland witness told us:
“On the information and evidence that criminal justice social work receives to inform our risk and needs assessment ... what is sorely lacking is the summaries of evidence that are narrated in court.”
He went on:
“Without it, we are entirely reliant on the offender’s version of events.”—[Official Report, Justice Committee, 8 May 2018; c 8.]
We know that summaries of court evidence are critical to an objective and accurate risk assessment and that without them, social workers will have less information than they should have about how decisions may affect victims. My concern is that victims and the public are unnecessarily put at risk because the right information is not being shared.
I lodged an identical amendment at stage 2, when members had several concerns. John Finnie asked what status a summary would have. The answer is that it would have only the weight that the social workers preparing their risk and needs assessment attributed to it. The definitive document remains the risk and needs assessment that is prepared by criminal justice social work.
John Finnie
The member will perhaps come on to explain the analysis that he has done of the impact that the amendment might have on the court service and on the already pressed criminal justice social work service.
15:15Liam Kerr
That is a reasonable point, and I am grateful for it. At stage 2, several members raised the concern that the court system would not have the resources to prepare a summary. I understand that point, but surely if something is the right thing to do, it is up to the Government to assess what resources the courts would need, especially for such a crucial bit of communication between the courts and criminal justice social work.
The cabinet secretary said in committee that there is no mechanism across all court business for routinely collecting and transmitting such evidence. Surely that is the problem, and that is what my amendment seeks to address. If agreed to, it would be up to the court to decide what form the summary took, and I am sure that it could create a format that would work best for it.
My amendment seeks to ensure that social workers have as much evidence as practical in front of them before making crucial risk assessments, which will inform judges’ decisions about whether an offender is safe to be on our streets.
I believe that I have answered the challenges, and I seek Parliament’s approval of the amendment.
I move amendment 144.
Daniel Johnson
I support the amendment. The committee heard one recurring theme throughout its evidence taking and, indeed, in relation to other issues that it has dealt with in the past year or so: the lack of information and data, especially from, but also to, the courts. I think that the amendment makes good provision for ensuring that that would be improved, and it merits support.
Humza Yousaf
An amendment in exactly the same form as amendment 144 was defeated at stage 2, so I am surprised that it has been lodged at stage 3.
As Liam Kerr has explained, the amendment seeks to place a new obligation on the Scottish Courts and Tribunals Service to make a summary of evidence provided in a case available to local authorities exercising their social work function. When we discussed the issue previously at committee, John Finnie asked Liam Kerr about the practicalities of that, who would produce the summary and what its status would be. We did not get answers to those questions then, and I am not convinced we have got them from Mr Kerr’s remarks today.
Fulton MacGregor pressed Liam Kerr—quite forensically, I thought—about whether he had had any discussions with Social Work Scotland, social workers or, indeed, the relevant agencies about the amendment. The answer that Liam Kerr gave was a categorical no. I am interested in whether he has now had discussions with Social Work Scotland or, indeed, the relevant agencies. I am happy to give way, if he wants to say that he has.
If we are seeking to improve the process of risk assessment, it is crucial that we are led by the considerations of the Risk Management Authority about what information is most relevant to risk. Accordingly, we need to be cautious as parliamentarians that we do not seek to pre-empt those considerations and predetermine the information that is to be considered as having a bearing on risk.
Amendment 144 would extend across all forms of court-imposed electronic monitoring. A social work report is prepared for the court when considering the imposition of a restriction of liberty order—an RLO—so social work would be aware of the background to the cases anyway. Therefore, there would seem to be limited merit in requiring the court to provide to the local authority information that it is already likely to have or to be aware of. In addition, social work involvement in monitoring an individual serving a community sentence varies depending on the community sentence imposed. For example, there is no requirement for a supervising officer to be appointed by the local authority for an individual sentenced to an RLO. The provision of a summary of the evidence in those circumstances would clearly be a pointless exercise.
In practical terms, I also note that it is not clear how the court would be able to identify which local authority is the relevant authority at the time of sentencing.
I draw Liam Kerr’s attention to amendment 126, in my name, which would create a duty to co-operate between, among others, the Scottish ministers and the Scottish Courts and Tribunals Service. That duty to co-operate would include the sharing of information. That would address Liam Kerr’s concerns about the sharing of information, but would—rightly—retain the flexibility for the Scottish Courts and Tribunals Service to determine what information it can usefully and practically provide.
Amendment 144 presents the same challenges as its predecessor did when it was discussed at stage 2. I ask Liam Kerr not to press amendment 144. If it is pressed, I urge members to reject it.
Liam Kerr
I thank those members who have spoken, and I am grateful to Daniel Johnson for his support. Is the amendment in the exact form as my amendment at stage 2? Yes, it is, because it was right at stage 2 and it is still right at stage 3.
The cabinet secretary said that he did not get the answers, but I am not the Government. I am not in a position to answer those questions, but I can put forward the principle. The cabinet secretary said that we would discuss the issue before stage 3. That has not happened, so I am not sure how the cabinet secretary could have helped me.
The point about—
Humza Yousaf
Will Liam Kerr give way?
Liam Kerr
I will not, if that is all right with the cabinet secretary—it is not a major point.
I quoted what Social Work Scotland said when this was discussed at stage 2, and that is what the Justice Committee heard:
“what is sorely lacking are the summaries of evidence that are narrated in court.”
Important information may be missing because of that, particularly in relation to victims.
I also draw the cabinet secretary’s attention to recommendation 182 of the Justice Committee’s stage 1 report, in which the committee called on the Scottish Government to explore with the SCTS how to
“routinely supply criminal justice social workers with summaries of evidence”.
The cabinet secretary says that there is “limited merit” in that, but the Justice Committee was clear on the merit. That is why the Parliament must take this forward.
The cabinet secretary alluded to amendment 126. For the avoidance of doubt, that is a good amendment and we will be voting for it. However, that does not negate why we should vote for amendment 144, which I will press.
The Presiding Officer
The question is, that amendment 144, in the name of Liam Kerr, be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Scott, Tavish (Shetland Islands) (LD)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 44, Against 69, Abstentions 0.
Amendment 144 disagreed to.
Amendment 15 moved—[Humza Yousaf]—and agreed to.
Section 2—Particular rules regarding disposals
The Presiding Officer
I ask Liam Kerr to say whether he intends to move amendments 17, 20, 22, 24, 25, 27, 29, 31, 33, 36, 38, 40, 42, 44, 46, 48, 50, 51, 54, 56, 57 and 59?
Liam Kerr
No.
Amendment 17 not moved.
The Presiding Officer
I invite the cabinet secretary to move amendments 18, 19, 21, 23, 26, 28, 30, 32, 34, 145, 37, 39, 41, 43, 45, 47, 49, 52, 53, 55, 58 and 60.
Amendments 18, 19, 21 and 23 moved—[Humza Yousaf]—and agreed to.
Section 4—More about the list of disposals
Amendment 25 not moved.
Amendment 26 moved—[Humza Yousaf]—and agreed to.
Amendment 27 not moved.
Amendment 28 moved—[Humza Yousaf]—and agreed to.
Amendment 29 not moved.
Amendment 30 moved—[Humza Yousaf]—and agreed to.
Amendment 31 not moved.
Amendment 32 moved—[Humza Yousaf]—and agreed to.
Amendment 33 not moved.
Amendment 34 moved—[Humza Yousaf]—and agreed to.
Amendment 145 moved—[Humza Yousaf]—and agreed to.
Section 5—Requirement with licence conditions
Amendments 35, 37, 39, 41, 43, 45, 47 and 49 moved—[Humza Yousaf]—and agreed to.
Section 6—Particular rules regarding conditions
Amendment 51 not moved.
Amendments 52, 53 and 55 moved—[Humza Yousaf]—and agreed to.
Section 7—List of the relevant conditions
Amendment 57 not moved.
Amendments 58 and 60 moved—[Humza Yousaf]—and agreed to.
Section 7A—Duty to share information before releasing a prisoner on licence
The Presiding Officer
Group 3 is on public authorities’ duties to co-operate and prepare in relation to a prisoner’s release. Amendment 61, in the name of the cabinet secretary, is grouped with amendments 126, 2 and 128.
Humza Yousaf
Although we supported the principle behind the original amendment on information sharing that was lodged by Daniel Johnson at stage 2, we opposed the amendment at stage 2 on the grounds that it was unnecessary and that it created challenges. Nevertheless, the amendment was agreed to and inserted section 7A. The concerns that we raised about the amendment remain valid. Amendment 61 would remove section 7A, and amendment 126 proposes an alternative approach to information sharing.
Section 7A places an obligation on the Scottish ministers to
“request information relevant to the monitoring of that prisoner”
from specified bodies—the Scottish Courts and Tribunals Service, Police Scotland and the relevant local authority—and the specified bodies must provide the information that is requested within 28 days of the request. I will set out the practical issues with such an approach.
The duty to request information arises before the prisoner is released on home detention curfew, but the duty has the caveat that it need be complied with only “where reasonably practicable”. The Scottish ministers will therefore be able to release a prisoner on HDC without complying with the duty if they can show that it was not reasonably practicable to do so.
The Scottish ministers will be obliged to request information prior to releasing a prisoner on HDC but will be under no obligation to wait for the information to be provided before they release the prisoner.
There is no description of what
“information relevant to the monitoring”
means. The Scottish ministers will therefore have a wide power to request any information that is linked to the monitoring of prisoners on HDC.
Furthermore, there will be no ability on the part of a specified body to refuse a request, in part or in whole, and section 7A provides no definition of “relevant local authority” or any explanation of how the Scottish ministers are to determine which local authority is relevant to the prisoner.
As we noted at stage 2, information is already shared between the Scottish Courts and Tribunals Service, Police Scotland, local authorities and the Scottish Prison Service, and the information is used by the SPS in determining applications for HDC. Therefore, our starting position was that the amendment was unnecessary.
Section 7A might also disrupt the current arrangements. A requirement to request information in every case could place an unnecessary burden on the SPS, which might already have the necessary information or might not require further information. The timing of the request could interrupt the determination of HDC, given that the timeframe that is set out in section 7A allows 28 days for the information to be provided if a request is made. That could slow down the determination and shorten the period that is available for HDC.
However, we are sympathetic to the intention behind section 7A. Amendment 126 will replace section 7A with provisions for a related but alternative approach, which amends section 1 of the Management of Offenders etc (Scotland) Act 2005. That section places a duty on the Scottish ministers and local authorities
“to co-operate with one another in carrying out their respective functions”
in relation to two groups of individuals. The first group is people who are supervised by, advised by or guided by a local authority as part of a service that is provided under
“sections 27(1) or (1A) or 27ZA of the Social Work (Scotland) Act 1968.”
That includes people who are released from prison on licence and people who are supervised under a community sentence. The second group is people who are detained in custody.
The duty to co-operate expressly includes the sharing of information. Amendment 126 will retain the intention behind section 7A while avoiding the difficulties with that section, which I have described.
On amendment 2, in the name of Daniel Johnson, access to suitable accommodation is important in supporting individuals who leave prison to reintegrate successfully and, therefore, in reducing the risk of reoffending. However, amendment 2 does not offer a proportionate or effective means of achieving that aim. It risks losing the current flexibility, which allows support to be tailored to the needs of the individual.
The Scottish Government supports a range of interventions that support prison leavers to reintegrate into the community. Those include measures to support prison leavers to access accommodation on liberation, such as the sustainable housing on release for everyone—SHORE—standards, which set out good practice on how the SPS and local government housing authorities can ensure that the housing needs of individuals in prison are met.
It is important to note that local authorities have statutory duties to address the needs of individuals who present as homeless and to provide information, support and services to individuals who are at risk of homelessness. Therefore, I am not persuaded that there is a need to legislate to require the Scottish ministers to take separate action to achieve the same aim. The duplication of existing duties and activities would be inefficient and disruptive, and it would create confusion about the responsibility for housing individuals who leave prison.
Instead, we should focus on making the existing processes as effective as possible. The Scottish Government will look at wider legislation and statutory guidance to ensure that everyone who faces homelessness is able to exercise their right and gain access to appropriate support. That work cannot take place in the context of the justice system alone, and the bill is not the right place to make such substantial changes to housing provision. Therefore, I ask Mr Johnson not to move amendment 2. If he does, I ask the Parliament to reject it.
15:30On amendment 128, I welcome Daniel Johnson’s effort to encourage us to think about how the justice system could operate differently. His amendment seeks to add a new element to HDC by requiring that
“Scottish Ministers take steps to ensure that a person subject to a curfew condition is provided with meaningful activity whilst subject to the curfew condition.”
I am not convinced that legislation is required to support people on home detention curfew, which provides an opportunity to support effective reintegration by enabling part of a prisoner’s sentence to be served in the community, subject to licence conditions and electronic monitoring. That option can currently be provided alongside other services to support individuals who are leaving short-term sentences, including pre-release planning, voluntary social work throughcare, the SPS’s throughcare support service and third sector offender mentoring services.
Although Daniel Johnson’s amendment is well intentioned, I believe that it could create significant restrictions on how the HDC system operates. The definition of “meaningful activity” is to be prescribed by Scottish ministers via subordinate legislation
“but must include ... work or volunteering opportunities”.
However, not every individual on HDC would be able—or, indeed, willing—to engage with those work or volunteering opportunities. It is not clear whether those individuals would be restricted from accessing HDC because no meaningful activity could be provided for them.
Ministers do not control the employment market and could not ensure that work was available for everyone on HDC, so the Scottish ministers could never comply with that duty. In any event, if ministers prescribe work or volunteering opportunities for people, that could cut across other work or family commitments that they may have. Such a system would not provide the flexibility that is needed to take account of the specific circumstances of the individual.
I agree that, ultimately, we can do more to ensure that people who are released from prison are able to connect with public services and are given opportunities. However, I disagree with an approach that seeks to set a broad and mandatory set of activities instead of allowing actions to be determined voluntarily. For those reasons, I propose to resist amendment 128.
I move amendment 61.
Daniel Johnson
I rise to speak to amendments 2 and 128. Before I do that, I will address the cabinet secretary’s comments on amendments 61 and 126.
I saw with some regret that the Government had lodged amendment 61, because I believe that a clear recommendation from Her Majesty’s inspectorate of constabulary in Scotland and Her Majesty’s inspectorate of prisons for Scotland was the need to improve information sharing between agencies. That was found by those bodies to be one of the critical issues around the tragic death of Craig McClelland. I recognise that amendment 126 would insert an alternative, but I do not believe that it would be as robust as a legal requirement to share information. That would be much more robust. However, if amendment 61 is agreed to, members should support amendment 126.
With regard to amendments 2 and 128, the justice system has a duty to protect the public, and it should aim for what I believe is the best way to do that: promoting reform and preventing reoffending. All too often, as the system stands, we simply return people to the circumstances in which they found themselves, which led to their offending in the first place. Amendments 2 and 128 seek to change that, and the amendments that I lodged at stage 2 regarding access to a general practitioner, an address and other measures also sought to rectify that situation.
I understand that it may be difficult and costly, but those things are vital because they are not happening. There may be standards in place, but I do not believe that a legal duty currently exists. The SHORE—sustainable housing on release for everyone—standards do not have a statutory footing. Wales has legislated for such a duty, and I simply ask the question: if it is good enough for Wales, why is it not good enough for Scotland?
As for meaningful activity, I fundamentally believe that the best way to prevent reoffending is by finding people meaningful work. That may be difficult, and I know that the Scottish Government does not control the employment market, but, if people are being released from prison, albeit on HDC, something must surely be found for them to do if we are to ensure that they do not reoffend. For those reasons, I will move amendments 2 and 128.
Graham Simpson (Central Scotland) (Con)
I speak in my capacity as convener of the Delegated Powers and Law Reform Committee, so I will not make any comment on the policy implications of section 7A or the cabinet secretary’s amendment 61, which seeks to remove it from the bill.
At its meeting this morning, the DPLR Committee scrutinised the recently lodged supplementary delegated powers memorandum. Unfortunately, the lodging of the supplementary DPM breached the timeframe that is required by standing orders, which meant that this morning’s meeting was our only chance to consider it. The committee was disappointed about the lack of time that it had to scrutinise effectively the changes that stem from stage 2, as a result of which we were clearly limited in what we were able to recommend to Parliament. The committee acknowledges that the past few months have been a busy legislative period for all of us, and we appreciate that oversights happen, but that should not have happened.
However, our report has now been published. In it, we make a number of recommendations on the supplementary delegated powers, one of which relates to section 7A. The committee agreed that I should highlight those concerns now, given that members will not have had a chance to read the report.
The committee noted that the delegated power in section 7A
“is particularly wide in its scope”
and that, in that respect, it contrasts with powers in other sections of the bill. The committee also observed that the obligation to request information that is relevant to monitoring a prisoner
“is potentially very wide ranging”
and that
“There will be data protection implications involved in sharing such information about the prisoner.”
Therefore, the committee considers that affirmative, rather than negative, procedure would have been more appropriate for a power of such a nature. That might, of course, be a moot point if section 7A is removed from the bill.
I commend the DPLR Committee’s report to Parliament.
John Finnie
I am content with the provisions of section 7A, which was inserted in the bill at stage 2, so we will not support the cabinet secretary’s amendment 61, which seeks to remove section 7A.
Sadly, I will not support my colleague Daniel Johnson’s amendment 128, even though it is entirely well meaning. I think that there are a number of challenges connected with it. In any case, the provision of “meaningful activity” should be part of a robust discharge plan, for want of a better term. As the cabinet secretary outlined, there are practical issues around that.
However, we will support Daniel Johnson’s amendment 2. The cabinet secretary talked about statutory duties and good practice—indeed, he promised us wider legislation and statutory guidance—but he will know that everything that we have heard is about the accommodation challenge that people face when they are discharged. That remains an issue, which amendment 2 would go some way towards addressing. It would provide focus; perhaps that is the focus that the cabinet secretary is saying will come with the wider legislation or the statutory guidance that is—if I heard him correctly—intended.
The system is not working, at the moment. We need more robust provision of accommodation. Therefore, we will support Daniel Johnson’s amendment 2.
Liam Kerr
I wish to speak in support of Daniel Johnson’s amendments 2 and 128. It seems to me that one of the points of the bill is to help with rehabilitation. I listened to Daniel Johnson’s and John Finnie’s comments, and I think that the proposed measures would have merit. Thus, we will support amendments 2 and 128.
Liam McArthur
I share Daniel Johnson’s curiosity about why the Government is seeking to remove section 7A, not least because—as I recall—its insertion was supported unanimously by the committee at stage 2. I would have thought that, if the Government was so concerned about what the committee unanimously agreed to at stage 2, there would have been some engagement between stage 2 and stage 3.
Like John Finnie, I think that, in relation to amendments 2 and 128, Daniel Johnson made some very valid points about the key role that gainful activity and housing play in the process of rehabilitation and reintegration. The concern that I have—which I had at stage 2—is that the proposal is framed such that the implication is that, where such provision is not in place, the individual will remain in prison, which cannot be in their best interests. Therefore, although we accept the principle that underlies amendments 2 and 128, we will, regretfully, not be able to support them.
Fulton MacGregor (Coatbridge and Chryston) (SNP)
I lend my support to the cabinet secretary’s amendments 61 and 126.
However, I will speak briefly against Daniel Johnson’s amendments 2 and 128. As Liam McArthur does, I think that there are positive intentions behind them, but the bill is the wrong place for them. A lot of work has already been done on the subject, as we heard in evidence to the Justice Committee. There is good work on housing and employment, and as Daniel Johnson discussed at stage 2, around health. Those issues are best left to local service providers that do the job every day, rather than to MSPs and politicians. We need to move away from centralising such matters.
John Finnie
Will the member take an intervention?
Fulton MacGregor
I was just finishing my speech, but I will take the intervention.
John Finnie
I am grateful to the member for taking an intervention on that point.
If someone comes from location A, was arrested in location B and plans to relocate to location C, who would be their local housing service provider? The statutory obligation rests with the local authority; which local authority would it be?
Fulton MacGregor
In that hypothetical situation, my understanding is that the obligation would rest with the local authority that the person came from, unless, while they were in custody, arrangements were made for them to move elsewhere. That makes exactly my point: such arrangements are made every day and services are in place to do that.
As I said earlier, the intentions behind amendments 2 and 128 are positive. I have spoken to Daniel Johnson in committee about them and I know that they are based on a positive intention. However, I do not think that the bill is the right place for them: I do not think that we should be centralising in that fashion. I will not support amendments 2 and 128.
Humza Yousaf
I have heard what committee members have had to say. I, too, say that the bill is the wrong place for amendments 2 and 128. I understand why Daniel Johnson has lodged them, but I hope that amendment 61 is an improvement on what was passed at the committee.
I say to Graham Simpson, who was speaking on behalf of the Delegated Powers and Law Reform Committee, that I am pleased that the committee welcomes the fact that the bill was amended at stage 2 to apply the affirmative procedure to regulations that will be made under section 9(1), in accordance with the committee’s recommendation. I am also pleased to note that the committee reports that it is content with the delegated powers provision, as set out in relation to excluded sentences and approved devices.
Of course, Graham Simpson is right to record the lack of time that the committee had. I apologise to the committee for the inadvertent breach of standing orders and for constraining the time that it had to consider the supplementary delegated powers memorandum. It was delayed as a result of an administrative oversight. I am happy to put on the record my apologies to the committee for that lack of time.
I press amendment 61.
The Presiding Officer
The question is, that amendment 61 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Yousaf, Humza (Glasgow Pollok) (SNP)
Against
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Rennie, Willie (North East Fife) (LD)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)
The Presiding Officer
The result of the division is: For 58, Against 55, Abstentions 0.
Amendment 61 agreed to.
Section 8—Approved devices to be prescribed
The Presiding Officer
Does Liam Kerr intend to move amendments 62, 64, 67, 69, 70A, 71, 72A, 73, 76, 77A, 78, 80, 82, 83A, 84, 86, 88, 90, 91A, 93, 95, 97, 99, 101 and 103?
Liam Kerr
No.
Amendment 62 not moved.
15:45The Presiding Officer
I ask the cabinet secretary to move amendments 63, 65, 66, 68, 70, 72, 74, 75, 77, 79, 81, 83, 85, 87, 89, 91, 92, 94, 96, 98, 100 and 102.
Amendment 63 moved—[Humza Yousaf]—and agreed to.
Amendment 64 not moved.
Amendments 65 and 66 moved—[Humza Yousaf]—and agreed to.
Section 9—Use of devices and information
Amendment 67 not moved.
Amendment 68 moved—[Humza Yousaf]—and agreed to.
Amendment 69 not moved.
Amendment 70 moved—[Humza Yousaf].
Amendment 70A not moved.
Amendment 70 agreed to.
Amendment 71 not moved.
Amendment 72 moved—[Humza Yousaf].
Amendment 72A not moved.
Amendment 72 agreed to.
Section 10—Arrangements for monitoring system
Amendment 73 not moved.
Amendment 74 moved—[Humza Yousaf]—and agreed to.
Section 11—Designation of person to do monitoring
Amendment 75 moved—[Humza Yousaf]—and agreed to.
Amendment 77 moved—[Humza Yousaf].
Amendment 77A not moved.
Amendment 77 agreed to.
Amendments 79 and 81 moved—[Humza Yousaf]—and agreed to.
Amendment 83 moved—[Humza Yousaf].
Amendment 83A not moved.
Amendment 83 agreed to.
Amendments 85, 87 and 89 moved—[Humza Yousaf]—and agreed to.
Amendment 91 moved—[Humza Yousaf].
Amendment 91A not moved.
Amendment 91 agreed to.
Section 12—Standard obligations put on offenders
Amendments 92, 94, 96, 98, 100 and 102 moved—[Humza Yousaf]—and agreed to.
The Presiding Officer
Group 4 is on persons subject to part 1 monitoring: consequences of breach or deemed breach of disposal or condition. Amendment 104, in the name of the cabinet secretary, is grouped with amendments 105, 146 and 130.
Humza Yousaf
Amendment 104 will remove the power of arrest in section 12(3A), which was voted on at stage 2. That provision enables a constable to arrest an individual if they have reasonable grounds to suspect that that individual has contravened the requirement to wear and refrain from damaging the electronic tag. The implication is that that arrest may be effected without a warrant.
The police already have powers to arrest an individual who is suspected of having committed an offence, but a breach of the electronic monitoring requirements by an individual who is serving a community sentence or subject to licence conditions is not an offence in itself. The power of arrest would not therefore apply when an individual cut off their tag. The unlawfully at large offence that we created at stage 2 would, of course, enable the police to arrest an individual if they had cut off their tag and failed to return to custody following recall. People who are unlawfully at large can be arrested without a warrant.
It is not clear from the powers of arrest in section 12(3A) what a constable is to do with an individual who is suspected of having breached an electronic monitoring requirement. An individual on licence is liable to be returned to prison only if the licence is revoked. Therefore, a constable who arrests an individual only on suspicion that they may have breached their licence could not return that individual to prison. An individual who is serving a community sentence is liable to be brought before the court only if the breach procedures for that community sentence have been invoked. A constable who arrests an individual only on suspicion that they have breached their community sentence could not return that individual to prison or take them to court. There are existing powers for the police, the Scottish ministers and the courts to deal with an individual if they have breached the terms of the licence or community sentence. People on licence can be recalled to prison and people who are serving a community sentence can be fined or sentenced afresh—even to imprisonment, of course.
A further point to note is that Mr Kerr’s amendment 105 also uses the word “offender”. At stage 2, the Justice Committee took great pains to ensure that that word was omitted from the bill, as we have confirmed in relation to previous amendments this afternoon.
It is clear that the power of arrest in section 12(3A) is unnecessary and that the creation of a specific statutory power of arrest is a departure from the use of a general power of arrest if an offence has been committed, as agreed by the Parliament in 2016. Police Scotland has also expressed its concerns to us about the limitations on how that power could be used. The creation of a power to arrest an individual without a warrant in the absence of a criminal offence being suspected or committed and without a duty on the individual to return to prison would be confusing and could even potentially represent a breach of article 5 of the European convention on human rights.
Amendments 105 and 130 would create the offence of cutting off a tag. My first reason for urging members to reject amendment 105 is because a near-identical form of the amendment was rejected at stage 2, and my arguments against that amendment continue to apply. Indeed, the only change to the earlier amendment is the provision of a limited form of statutory defence.
Secondly, the new unlawfully at large offence ensures that those who cut off their tag and abscond will be committing an offence. Making one specific part of the same course of behaviour a further offence is therefore not necessary.
Thirdly, the proposed offence of cutting off a tag carries a maximum sentence of 12 months’ imprisonment. There would be a presumption against imprisonment for the new offence. Under the proposal, the individual may therefore be more likely to receive a fine.
Fourthly, there are already sanctions for those who cut off an electronic tag or otherwise breach the conditions of a licence or community sentence. The individual can be recalled to prison or, indeed, returned to court, to face further punishment for the breach.
Fifthly, the creation of an offence of cutting off a tag could result in an individual who is serving a community sentence being fined for breaching the community sentence and for cutting off their tag. That would mean two separate financial punishments being imposed on an individual for the same course of conduct. In contrast, the unlawfully at large offence would not apply to community sentences, thereby avoiding the risk of double punishment.
The defence that amendment 105 provides would not protect an individual whose tag is damaged accidentally or removed forcefully by a third party. A defence of reasonable excuse would be required to ensure that an individual was not convicted of an offence for conduct over which they had no control. The proposed offence would elevate the electronic monitoring requirement above all other conditions in the licence or community sentence, even if those other conditions were more important in protecting the public. For example, an individual who stayed in the house and cut off the tag would be committing an offence, whereas an individual who breached a condition not to go near a primary school would not.
Amendment 130, in the name of Daniel Johnson, is similar in nature to amendment 105, so the same arguments apply. Although the defence that is proposed in amendment 130 is framed differently, it attracts the same criticism as the defence for which amendment 105 provides. An individual who accidentally damaged their tag, or whose tag was forcefully removed against their will, would not be afforded a defence under that amendment.
An additional difficulty with amendment 130 is that there is no specific punishment for the offence. While amendment 105 specifies the maximum punishment on summary conviction for the cutting off of a tag, there is no punishment specified at all in amendment 130. It is not clear whether the offence that would be created by amendment 105 could be tried only summarily or in solemn proceedings as well. I urge members to vote to reject those two amendments.
Margaret Mitchell’s amendment 146 is broadly similar to the amendment that she lodged at stage 2, which was rejected. The reasons for rejecting the amendment remain the same. The only change to the wording is the addition of qualifying language that states that, when there is a suspected breach, the designated person
“must notify such bodies mentioned in subsection (3) as they consider appropriate.”
The amendment would place an obligation on the designated person—currently, G4S—to report every suspected breach of a community sentence or licence condition to the police, as there are currently no other bodies specified in subsection (3).
The breach would also require to be reported whether or not the designated person considered that it should be addressed by the police. The duty to report a suspected breach would apply irrespective of whether the individual required to be recalled to prison under the terms of their licence or whether any enforcement action was to be taken. For example, an individual who is five minutes late for their home detention curfew would require to be reported to the police, even though the police would not act on that information unless the individual had been recalled, which in most instances one would suspect would not be the case.
The drafting of amendment 146 means that the provision would apply where the individual was suspected of having breached a section 3 disposal or a section 7 licence condition. There is no reference to an electronic monitoring requirement, so it would capture any breach of a disposal or licence listed in sections 3 or 7, even where no electronic monitoring requirement was imposed.
Finally, the obligation to inform is also confusing, as it specifies two different timescales for compliance. The first is “Immediately” after the suspicion arises and the second is
“or as soon as is reasonably practicable”.
For all those reasons, I ask members to reject amendment 146.
I move amendment 104.
Liam Kerr
Parliament will be well sighted on amendment 105 and the reasons for it, and it is imperative, in my view, that Parliament has its say. Members will be aware that, under the bill as amended at stage 2, offenders who were out on a tag could cut off their tag and would not be considered to have committed a criminal offence. I find that extraordinary. There should be an immediate power of arrest, and amendment 105 would provide that.
The reality of the increase in the use of tagging means that someone would be in prison but for the tag that they are wearing. We must surely, therefore, treat the removal of a tag as seriously as if the person had breached the prison wall.
Parliament will be reassured to note that Scottish Women’s Aid made clear to the committee in its stage 1 evidence that a criminal offence in such circumstances is needed if there is to be a credible deterrent. Victim Support Scotland, Community Justice Scotland and Positive Prisons? Positive Futures called for robust responses to breaches of monitoring conditions.
Again, the committee rightly raised objections at stage 2 and, no doubt, Parliament would wish to hear them answered. Fulton MacGregor was uncomfortable that such an offence seemed to be punitive. I can only respond that of course it is punitive, because the offender has done something that is akin to breaching the prison wall.
The cabinet secretary was concerned that someone might need to remove a tag for medical reasons and would then be further criminalised as a result. I was not convinced that that would happen, and I remain unconvinced. I do not foresee some sort of strict liability around the provision, but I see the need for reassurance, which is why I have added the defence of removing the tag for medical reasons.
If the legislation is going to increase the number of offenders on tags, the appropriate protections must be in place. That means making it a criminal offence to tamper with or damage a tag, and I seek Parliament’s support for amendment 105.
For similar reasons, we will support Daniel Johnson’s amendment 130 if he chooses to move it, and we will oppose amendment 104, which seeks to remove what was a sensible amendment at stage 2 that aimed to ensure that the police have powers of arrest when an offender has cut off their tag. The stage 2 amendment was lodged in response to evidence that the committee heard from the police that there are legal grey areas around their powers to apprehend, and the provision is now in black and white in the bill.
Margaret Mitchell (Central Scotland) (Con)
Police officers do not monitor or control the conditions that are attached to electronic monitoring. When a breach of those conditions occurs, such as when the offender enters an excluded area or tampers with or removes their tag, the police officers’ response is reactive. That has raised concerns at Scottish Women’s Aid, Victim Support Scotland and Community Justice Scotland that the response time to react to a breach is too long.
Amendment 146 therefore seeks to ensure that, when there is a suspected breach of a disposal or conditions, the relevant bodies are contacted immediately, or as soon as possible. The relevant bodies are listed as:
“(a) the Police Service of Scotland”
and
“(b) such other body as the Scottish Ministers may by regulations specify.”
As the cabinet secretary said, amendment 146 is similar to one that I lodged at stage 2, but it has been revised to take account of the concerns that the cabinet secretary raised at stage 2 about minor breaches being escalated to the police. The amendment now provides for discretion and a proportionate response to any breach by stipulating:
“Immediately or as soon as is reasonably practicable after a suspected breach mentioned in subsection (1) has occurred, a person designated under section 11(1) must notify such bodies mentioned in subsection (3) as they consider appropriate.”
In other words, the amendment allows the designated person to use their judgment about whether they consider that the breach is one that must be responded to immediately by, for example, Police Scotland. As domestic abuse would possibly be covered by conditions, a breach could result in a victim being put in immediate danger, so I hope that the cabinet secretary will support amendment 146. Crucially, it removes the potential for minor breaches—as a result of a technical error, for example—to be escalated to the police, but it provides added protection for victims of domestic abuse.
Amendment 146 also gives clarity to the procedure to be followed, which is why the Law Society of Scotland supports it.
Daniel Johnson
I believe that it is important that we make cutting off a tag an offence for the following reasons. First, when we look at the circumstances of Craig McClelland’s death, it is clear that a significant number of people were unlawfully at large who had realised that they could cut off their tags and that that, in and of itself, did not constitute an offence and that they had a good chance of escaping detection. That needs to be corrected.
16:00More important, if we decide that someone has committed an offence that requires us to deprive them of their liberty, and they tamper with the means by which we are restricting or removing their liberty, that is extremely serious, so I believe that doing so should be an offence. If we cannot monitor their whereabouts or whether they are abiding by the restriction of liberty, that must be considered an offence and should be treated as such.
It is not about elevating the electronic monitoring requirement above other conditions; it is about recognising that the tag is the primary measure that we will be using to deprive people of their liberty in such circumstances.
Humza Yousaf
On the tragic case that Daniel Johnson mentioned, I know that the thoughts of everybody in the chamber will be with the McClelland family. Does Daniel Johnson recognise that we are introducing an offence of being unlawfully at large, which, in that case, would have meant that James Wright would have been arrested? Therefore, I am not sure that the case is a justification for making cutting off a tag an offence.
Daniel Johnson
The cabinet secretary is right; I welcome the new offence. It is an important step forward and it would correct many of the issues. However, as Liam Kerr put it, when someone goes over the prison wall, we do not wait for them to rob a bank before we arrest them. We arrest them once they have gone over the wall. If someone cuts off their tag, we should not wait—their doing so should, in itself, be a ground for arresting that person.
Fulton MacGregor
I want to speak briefly, because Liam Kerr mentioned me in his remarks. For the record, I did not say that the offence would be regarded as punitive; I said that it could be regarded as overly punitive, because the individual circumstances would not be taken into account. There was a wee bit of a play on words there, which I think the Official Report will show.
Of course the breach of an electronic monitor needs to be taken seriously and dealt with robustly—nobody in the chamber would disagree. However, we need to get the balance and the measure right—that is why the provisions of the bill are the right way to deal with the issue, and we should not play simple politics with it.
The Presiding Officer
I call the cabinet secretary to wind up on this group.
Humza Yousaf
I have no further comments.
The Presiding Officer
The question is, that amendment 104 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Scott, Tavish (Shetland Islands) (LD)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)
Against
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McDonald, Mark (Aberdeen Donside) (Ind)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
The Presiding Officer
The result of the division is: For 68, Against 45, Abstentions 0.
Amendment 104 agreed to.
Amendment 105 moved—[Liam Kerr].
The Presiding Officer
The question is, that amendment 105 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McDonald, Mark (Aberdeen Donside) (Ind)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Scott, Tavish (Shetland Islands) (LD)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 45, Against 68, Abstentions 0.
Amendment 105 disagreed to.
Amendment 106 moved—[Humza Yousaf].
Amendment 106A not moved.
Amendment 106 agreed to.
Section 13—Deemed breach of disposal or conditions
Amendments 107 and 109 moved—[Humza Yousaf]—and agreed to.
After section 13
Amendment 146 moved—[Margaret Mitchell].
The Presiding Officer
The question is, that amendment 146 be agreed to. Are we agreed?
Members: No.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Scott, Tavish (Shetland Islands) (LD)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 44, Against 69, Abstentions 0.
Amendment 146 disagreed to.
Section 14—Documentary evidence at breach hearings.
The Presiding Officer
Does Liam Kerr intend to move amendments 111A, 112, 113A, 114, 115A, 116, 118 and 120?
Liam Kerr
No.
The Presiding Officer
Thank you. I invite the cabinet secretary to move amendments 111, 113, 115, 117 and 119.
Amendment 111 moved—[Humza Yousaf].
Amendment 111A not moved.
Amendment 111 agreed to.
Amendment 113 moved—[Humza Yousaf].
Amendment 113A not moved.
Amendment 113 agreed to.
Amendment 115 moved—[Humza Yousaf].
Amendment 115A not moved.
Amendment 115 agreed to.
Section 16—Additional and consequential provisions
Amendments 117 and 119 moved—[Humza Yousaf]—and agreed to.
After section 16
The Presiding Officer
Group 5 is on the enforcement of fines and so on. Amendment 121, in the name of Lewis Macdonald, is the only amendment in the group.
Lewis Macdonald (North East Scotland) (Lab)
The purpose of my amendment is to address an anomaly in the law that was first raised with me by my constituent Michelle Gavin almost three years ago.
An intruder broke Michelle Gavin’s fence while trying to avoid a police officer. Rather than take him to court, the procurator fiscal offered the intruder a fiscal fine—a compensation order requiring him to pay the householder £400 to fix her fence.
When I raised that case during stage 2 consideration in April, the money paid to my constituent amounted to £7.50. Thanks to the spotlight of parliamentary scrutiny, that has now risen to £15. That means that £385 remains outstanding three years after the damage took place. By any standard, the law has failed that victim, just as it has many thousands of others. That is why change is required.
Michelle Gavin has received only a fraction of the compensation owed to her, in part because the perpetrator is under no legal obligation to provide information on his income, savings or benefits, or any other relevant information that would help to ensure that he paid the fiscal fine. It is far harder for the courts to enforce such an order. That is why my amendment proposes to make completing a declaration of income form, which is relevant in this case, mandatory.
When I moved a similar amendment at stage 2, members suggested that it should make provision for reasonable excuse and specify a time limit for completing the form. I have addressed those points in the revised amendment.
Perhaps more importantly, the cabinet secretary said at stage 2 that he would rather not rely on declaration of income forms since the necessary information could be obtained direct from United Kingdom Government departments. I am very open to that approach. The Digital Economy Act 2017 contains provisions to allow the courts to obtain information about benefits and earnings directly from Department for Work and Pensions and HM Revenue and Customs databases, but that requires the Scottish ministers to introduce the necessary regulations to allow the Scottish Courts and Tribunals Service to put the appropriate arrangements in place.
I return to the issue in order to discover from the cabinet secretary whether such regulations have been drafted and, if so, when he expects them to be laid. I also ask whether those regulations will ensure that data sharing will apply to fines that have not yet been paid, as well as to new cases decided after the regulations are approved.
Michelle Gavin has already waited far too long. My purpose is to ensure that her case can be revisited by the Scottish Courts and Tribunals Service, using new powers to obtain information so that she can get the money to which she is entitled, whether those powers come from this amendment or from Government regulations on sharing data. I look forward to the cabinet secretary’s contribution.
I move amendment 121.
Humza Yousaf
As at stage 2, when an almost identical amendment was voted down, I welcome Lewis Macdonald’s interest in improving fines enforcement. The commitment of all parties to that important work is welcome, and I appreciate the fact that he is acting on behalf of a constituent in his region.
Fines collection rates in Scotland are high, and I welcome the continuing efforts that the Scottish Courts and Tribunals Service puts into enforcement. Recent statistics show that 90 per cent of the value of sheriff court and justice of the peace court fines imposed during the three-year period between 2015-16 and 2017-18 had either been paid or was on track to be paid. I accept that the remainder is a hard nut to crack, and I appreciate that that is exactly what amendment 121 is aimed at addressing. However, amendment 121 is not the best way of going about that. Despite some changes that Mr Macdonald has made to the amendment since stage 2, it remains somewhat flawed. Among other issues, failure to obey a court order is a contempt of court, and the penalties for contempt of court are set out in the Contempt of Court Act 1981. It depends on the court, but in all cases the penalties exceed the £1,000 set by amendment 121 and include the possibility of imprisonment. The offence that Mr Macdonald seeks to create does not even match the existing deterrent. There is no justification for creating a new criminal offence for conduct that can be already be dealt with by a court.
There are other technicalities that I can go into if necessary. More fundamentally, though, from a policy point of view, I am concerned, as I mentioned at stage 2, about the circularity of creating a new offence attaching a penalty of a fine in precisely those cases where the individuals concerned had already demonstrated their failure to engage with fine enforcement officers. I note that the offence appears to be little used in England and Wales, which suggests that there is little point in creating one up here.
There is a better way of dealing with this. Lewis Macdonald asked for an update from the Government about regulations. He is right—we want the Scottish Courts and Tribunals Service to obtain relevant information about a person’s income directly from the Department for Work and Pensions and HM Revenue and Customs. I can confirm to Lewis Macdonald that before the end of the year we will put draft regulations before the Parliament to enable that to happen. What that means is that instead of asking the defaulting individual for information about income and benefits, the fine enforcement officers would be able to obtain that information directly from the DWP and HMRC. That would be a far more effective way of dealing with people who have already proved themselves reluctant to engage with the court service. It does not create a circular offence.
In summary, despite some of the changes to amendment 121 since stage 2—
Lewis Macdonald
I welcome the cabinet secretary’s commitment on timescale. Can he confirm that the regulations, when agreed to, will permit the Scottish Courts and Tribunals Service to pursue defaulters for fines that have previously been imposed but have not yet been paid?
Humza Yousaf
I do not know whether we have the ability to be retrospective. If the member will forgive me, I cannot say that until we draft the regulations and have come to a determination following our own legal advice and after speaking to the DWP and HMRC.
I recognise that it is an important matter, particularly because Mr Macdonald’s constituent has been waiting for three years for the fine to be paid. When we return from recess and when we are drafting those regulations, perhaps I can meet Mr Macdonald to assure him that we will do everything possible to help people such as his constituent and many others who may well be in that situation to have those fines paid. I will endeavour to involve him in some of the conversations around the drafting of the regulations.
For all the reasons that I have outlined, I hope that Mr Macdonald will not press amendment 121 but, if he does so, I ask members to reject it.
16:15Lewis Macdonald
I welcome the commitment that the cabinet secretary has made in relation to timing and his offer of a meeting to ensure that the changes that go through Parliament will assist in the case of Michelle Gavin and the many other cases that are no doubt outstanding. I look forward to that discussion with him soon after the summer recess. On that basis, I seek to withdraw amendment 121.
Amendment 121, by agreement, withdrawn.
Section 44—Continued independence of action
The Presiding Officer
Group 6 is a group of minor and technical amendments. Amendment 122, in the name of the cabinet secretary, is grouped with amendments 123, 131, 132 to 137 and 143.
Humza Yousaf
The amendments in this group are all minor or technical amendments to tidy up the bill. I do not think that there is anything controversial among them, so I will not keep members back by saying too much about them.
Amendments 122, 123, 133 and 136 ensure that the Prisoners and Criminal Proceedings (Scotland) Act 1993 is referred to consistently throughout the bill with the label “the 1993 Act”. Amendments 131 and 132 adjust some language in section 43C that was added at stage 2 so that it is consistent with the language that is normally used in provisions of this type. Amendment 143 corrects a typo where the word “Act” appears once too often.
The other amendments in the group move sections around to improve the accessibility of the legislation. Everything that is about the Parole Board for Scotland as an institution will sit in part 3 and all the substantive provisions about prisoners will sit in a new part after part 3.
I move amendment 122.
Amendment 122 agreed to.
The Presiding Officer
Group 7 is on the independence of the Parole Board for Scotland. Amendment 1, in the name of Daniel Johnson, is the only amendment in the group.
Daniel Johnson
I am mindful of two key points. The first is the correspondence that I have had from the cabinet secretary, for which I thank him. The second is my understanding that the Government intends to introduce legislation on the Parole Board. I will bear that in mind in what I say. I do not intend to speak for long.
The Parole Board does particularly important work in determining whether individuals continue to pose risk to public safety and whether they should be released from prison. It is therefore critical that the board’s work is carried out independently. That work is not always easy and it requires fine and balanced judgments, and therefore its independence is important. The independence of the judiciary, which is set out in statute and which we all have a duty to uphold, should be mirrored for the Parole Board. However, I recognise that there may well be technical issues with the amendment, and I will listen to what the cabinet secretary has to say on it.
I move amendment 1.
Humza Yousaf
I thank Daniel Johnson for his amendment and for the constructive conversation that we have had at the various stages of the bill. As Daniel Johnson rightly did, I put on record the fact that the Parole Board’s members do an incredibly difficult job, and they do it very well. It is a remarkably difficult job and one that has to be—and rightly is—free from political interference and indeed governmental interference. We should all unite in defending the independence of the Parole Board, and I am sure that we all do.
I sympathise with the purpose of amendment 1, but I consider that section 44 goes far enough in restating the independence of the Parole Board. As briefly as possible, I will touch on my concerns about amendment 1. The area that causes me the most concern relates to the Scottish ministers’ power to recall a person to custody for breach of their licence conditions. My view is that any such action to revoke a licence by the Scottish ministers would run contrary to the proposed amendment. It effectively involves the Scottish ministers revoking the person’s licence, as set by the Parole Board, and could be seen by some as interfering with the board’s independence.
I am sure that members will agree, where protection of the public demands it, it is appropriate that the Scottish ministers can make a decision to revoke a licence without having to wait until the next time that the Parole Board will convene to consider the case. I am happy to expand on that or my other concerns. The reason why I am highlighting them is that I believe that the amendment may have unintended and potentially damaging consequences to the overall parole system.
I consider section 44 to be sufficient to restate the independence of the Parole Board. I therefore ask Daniel Johnson not to press amendment 1, and if he is otherwise minded, I urge other members to reject it.
The Presiding Officer
I invite Daniel Johnson to wind up and to press or withdraw amendment 1.
Daniel Johnson
I heard what the cabinet secretary has to say and understand his reservations. If the Government brings forward legislation in the coming months and years, we need to consider the role of the Parole Board very carefully, in terms of its independence and the fact that, while in many respects it is a tribunal like other courts, it is not identical. Its important role needs careful consideration. However, with the comments that the cabinet secretary has just made in mind, I will not press the amendment.
Amendment 1, by agreement, withdrawn.
Section 36—Mandatory categories of member
Amendment 123 moved—[Humza Yousaf]—and agreed to.
Before section 39A
The Presiding Officer
Amendment 124, in the name of the cabinet secretary, is grouped with amendment 127.
Humza Yousaf
Amendment 124 seeks to make a change to section 3AA of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in order to provide greater flexibility in the structure of HDC and to clarify its impact on the Parole Board’s assessment for parole.
The direct impact of the change will be minimal in terms of eligibility for HDC. However, in the context of a historically high prison population, the change is required so that ministers will have sufficient powers to configure HDC differently in the future, should they ever need to do so. I believe that it is a prudent step to take now, when there is an available legislative vehicle.
The amendment proposes a change in how the minimum length of time that is to be spent in custody before a person becomes eligible for HDC will be framed in legislation. Currently a prisoner can be eligible only after serving one quarter of their sentence or four weeks—whichever is greater. Subsection (2) will change that so that a prisoner will have to serve only one quarter of their sentence to be eligible for HDC. The Scottish ministers currently have the power, via subordinate legislation, to modify the requirement that a prisoner must serve a minimum of four weeks but not the requirement that a prisoner must serve an absolute minimum of one quarter of their sentence. Subsection (3) will enable the Scottish ministers to modify, via subordinate legislation, the minimum amount of time that must be served for HDC eligibility, should they ever need to do so.
If it were ever necessary to change the requirement that a minimum of 25 per cent of a sentence must be served before someone becomes eligible for HDC, any such proposal would come back to the Parliament for approval under subordinate legislation—which, importantly, would be subject to the affirmative procedure—instead of requiring future primary legislation. That pragmatic change will ensure consistency with the already broad range of powers that ministers have to modify the HDC regime via subordinate legislation.
The Scottish ministers have the power to modify the following aspects of the HDC regime via subordinate legislation: the minimum sentence that a short-term prisoner must be serving to be eligible for HDC, which is currently three months; the number of weeks that must be served before a short-term prisoner can be eligible for HDC; the number of days leading up to the halfway stage of a prisoner’s sentence during which HDC can be granted; and the statutory exclusions from HDC.
However, although the Scottish ministers have a power to modify the minimum number of weeks that must be served before a prisoner is eligible, which is currently four weeks, there is no power to modify the requirement that one quarter of the sentence must be served. The requirement that a prisoner must have served a requisite amount of a sentence before being eligible for HDC remains a barrier to flexibility in how the system can be configured.
Under the powers that are proposed, the Scottish ministers will be able to change the minimum time that must be served before a prisoner can be eligible for HDC, either by reference to a specific period of a prisoner’s sentence or by a specified period of time. The two-pronged approach of requiring either four weeks or a quarter of the sentence to be served will be replaced with the simple requirement that one quarter of a sentence be served. Ministers will retain the power to modify that requirement. I stress that we are not proposing to change the requirement that a prisoner must serve 25 per cent of their sentence. However, amendment 124 provides the flexibility for ministers—present or future—to work with the Parliament to act quickly if that is required.
I would have preferred to have had the opportunity to debate the change at committee stage—or, indeed, to have taken forward the approach through new legislation—but the prison population has continued to change over recent weeks, with numbers creeping steadily upwards. I must therefore act now and ask the Parliament to consider this option as a pragmatic future proofing of the available policy responses. We are, of course, exploring other measures in relation to operational capacity in the existing prison estate, and we are looking across the operation of the entire justice system in seeking to address the rising prison population. The change to HDC is relatively minor in nature, but the fact that it needs to be considered should give us all pause to reflect that we have the highest prison population per capita in western Europe—which is not a statistic to be proud of.
There has been positive collaboration on many parts of the bill to date, including through the support for electronic monitoring as an alternative to prison. I hope that the collaboration across parties will extend into future parliamentary sessions, because it is important that we continue to seek alternatives to incarceration across all our legislative and policy choices.
The final change that amendment 124 will make is to clarify that the legislation that underpins HDC does not require the Parole Board for Scotland to make a decision on parole by a specific date to enable a long-term prisoner to access HDC. Long-term prisoners are eligible for HDC only if they have been pre-approved for parole by the board at the halfway stage of their sentence. Amendment 124 clarifies that the window during which a long-term prisoner can be granted HDC is restricted by the timing of the board’s decision to recommend release on parole: the decision on parole will take precedence and will not be expedited to enable a long-term prisoner to spend a longer period on HDC.
Amendment 127 was lodged in response to an amendment that Margaret Mitchell lodged at stage 2, which proposed that statutory HDC guidance should be produced and laid before the Parliament. As I said at stage 2, I am sympathetic to the intent behind that amendment, and I am grateful to the convener, Daniel Johnson and Liam Kerr for working with us on an approach that I hope satisfies them and provides what they were looking for.
Amendment 127 sidesteps two areas of concern with the amendment that was considered at stage 2. It avoids including material that duplicates other provisions in the bill and it does not create a circular obligation on the Scottish ministers to have regard to their own guidance. We propose that ministers should be obliged to publish a statutory HDC operating protocol, which will include the following heads of information:
“(a) the process of risk assessment that is carried out before a prisoner is released on licence under section 3AA”—
of the Prisoners and Criminal Proceedings (Scotland) Act 1993—
“(b) the factors taken into account in carrying out such risk assessments,
(c) the procedures for monitoring a prisoner while released on licence under section 3AA,
(d) the process for investigating a suspected failure to comply with a condition included in a licence under section 3AA,”
and
“(e) the process by which a licence under section 3AA is revoked and a prisoner recalled to prison as a result”.
We included in amendment 127 a requirement for the police, the SCTS, local authorities, the Parole Board and the Risk Management Authority to be consulted in the preparation of the protocol. In addition, the protocol will require to be laid in the Parliament within six months of royal assent and will thereafter be kept under review.
The inclusion in the bill of the heads of information on risk assessment and factors to be taken into account in carrying out a risk assessment will, we hope, satisfy members and provide what they were looking for in relation to risk.
The heads of information that are set out in amendment 127 will ensure the publication of information about the entire HDC process, including the risk assessment prior to the granting of HDC, the monitoring of risk in the community and the revocation of HDC.
The requirement to lay the protocol before the Parliament will give the Parliament an opportunity to scrutinise the risk assessment procedures that are used for the purposes of HDC.
I urge members to support amendments 124 and 127, and I move amendment 124.
16:30Margaret Mitchell
I am grateful to the cabinet secretary for meeting me to discuss the need for stronger risk assessment before electronic monitoring is considered. As he says, at stage 2, I tried to push for robust risk assessment procedures and for details of the risk assessment tool to be shared with the Parliament before the bill was passed. I am pleased that our discussions have at least led the cabinet secretary to lodge a stage 3 amendment that will ensure that the details of how risk will be assessed will be consulted on and that a report will be produced for the Parliament within six months of royal assent if the bill is passed today. On that basis, I am happy to support amendment 127.
Daniel Johnson
I express my support for amendment 127. It is a positive step forward. My only regret about it is that it does not contain a legal obligation for the guidance to be followed, which would make a substantive difference. I will cover that when we come to risk assessment, later in the debate.
I will express the three reasons for my concern about amendment 124. The first is the rationale. Although I completely agree with the cabinet secretary that we must make a concerted effort to reduce our prison population and that we must seek alternatives to incarceration, I worry that the proposed measure, in making that intention explicit and in having solely that aim, potentially risks the very intent that the cabinet secretary sets out. We will reduce the prison population by reducing offending, not simply by re-categorising people.
Secondly, I worry about the power that the cabinet secretary is giving to ministers in allowing them to alter the minimum threshold for HDC. I worry about whether that is appropriate, because I believe that we should be avoiding short prison sentences. On removing the threshold of four weeks, I wonder what the point of sending someone to prison for less than four weeks is. That is counterintuitive.
Fundamentally—and finally—Parliament has not been able to scrutinise the proposals, which is a matter of huge regret.
For those reasons, I do not believe that amendment 124 can be supported. It perhaps could have been supported if its provisions had been introduced earlier, but I do not believe that they can be supported when the amendment has been lodged at this late stage.
John Finnie
The Scottish Greens will support both of the amendments in the group. They are a useful contribution to what has been a very detailed debate on the whole issue, particularly around the question of risk assessment. I wonder whether the cabinet secretary, in his summing up, can comment on the likely impact on the numbers. It was depressing to see the most recent figures for people being granted home detention, which showed a significant drop in their number—due, no doubt, to the risk aversion that was built into the system. I ask the cabinet secretary to comment on that. Nevertheless, he has our support for both of the amendments in the group.
Humza Yousaf
I thank members for their contributions. I will focus on some of the questions that have been asked of me in relation to amendment 124. I reassure Daniel Johnson that the measures will be subject to the affirmative procedure. Therefore, Parliament will be able to scrutinise and debate any changes. Let me put on record again—as I did in my opening remarks—that we are not proposing any change to the minimum time period; the aim is simply to allow ministers more flexibility.
On HDC, my belief is that, as John Finnie said, the pendulum has perhaps swung too far in the other direction in that the number of people who are coming out of prison on HDC is very low. A number of members have written to me, expressing their concerns on that very point. As John Finnie suggested, it is not a question of re-categorising people; it is about examining the HDC regime as a whole and seeing where sensible changes can be made, always with the protection of the public foremost in our minds.
On the question of scrutiny, our amendments were lodged by the deadline, as they were meant to be, and this is a good point at which to scrutinise them. Of course, if they could have been introduced earlier, I would have preferred that—members will forgive me for the fact that they were not.
To address John Finnie’s point, we are not proposing any changes to the eligibility criteria, so there will not be a change in the numbers. However, as he is aware, the two inspectorates—HMICS and HMIPS—conducted a follow-up inspection of the review of HDC, and there is a lot in that review that would help to negate and mitigate some of the risk aversion that he, rightly, talks about.
Therefore, with the protection of the public foremost in mind, it is possible to look at the HDC regime and ensure that it is being used in a proportionate and balanced manner to give people the opportunity to reintegrate into their communities and, we hope, to reduce reoffending. I thank Margaret Mitchell for her helpful comments throughout the debate, including the comments that she made a moment ago.
The Presiding Officer
The question is, that amendment 124 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Scott, Tavish (Shetland Islands) (LD)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)
Against
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
The Presiding Officer
The result of the division is: For 69, Against 44, Abstentions 0.
Amendment 124 agreed to.
After section 42
The Presiding Officer
Group 9 is on Parole Board for Scotland decision making: provision of assistance and information. Amendment 3, in the name of Gordon Lindhurst, is grouped with amendment 125.
Gordon Lindhurst (Lothian) (Con)
Briefly, the purpose of amendment 3 is set out within the amendment. It is to do with Parole Board hearings and it seeks
“to ensure that a prisoner whose case the Board is considering”
is able to understand
“the ... matters being discussed at the hearing”.
In technical terms, the amendment would simply bring the provisions for people who appear in front of the Parole Board into line with the provisions for people who are detained under the Mental Health (Care and Treatment) (Scotland) Act 2003, by having the provisions of that act made available to them. The point is to provide appropriate support for vulnerable prisoners at Parole Board hearings.
I will conclude with the words of the cabinet secretary in his letter to me of 10 June. He said:
“It is clear that your suggestion has merit”.
My delight at those words is equalled only by my disappointment that it is his intention, I understand, not to support my amendment 3. However, I intend to move and press it.
I move amendment 3
Humza Yousaf
I never aim to disappoint, but in this case I probably will. If it were agreed to, amendment 3 would result in a small part of the Parole Board procedure being provided for in primary legislation, while the remainder would be provided for in secondary legislation in the Parole Board (Scotland) Rules 2001.
Gordon Lindhurst has made a strong argument for the principle of what he is suggesting: I think that we would all unite around the principle of vulnerable prisoners being given support such as he suggests. However, my issue is largely with where that support would lie in legislation and the unintended consequences and problems that that might incur. Although we disagree about amendment 3, I thank Gordon Lindhurst, who has been very constructive in his approach. We have tried as best we can to reassure each other mutually. I know that he comes at the issue on the basis of the experience gained from his professional background.
Rather than being able to be made through secondary legislation, any further changes to the provisions that are set out in amendment 3 would require an act of the Scottish Parliament. In this instance, I remain of the view that it is entirely appropriate that matters of procedure for the Parole Board be provided for in secondary legislation. That gives us the flexibility to change aspects of Parole Board procedure more quickly, should the need to do so be identified. For that reason, I consider that matters relating to procedure are for the Parole Board rules, rather than the bill.
In addition—I know that Gordon Lindhurst and other members will be aware of this—the consultation on transforming parole in Scotland, which closed on 27 March, included proposals to provide additional support to prisoners who are in the parole process. We are currently considering the responses to the consultation.
As I stated in my letter to Gordon Lindhurst when he lodged a similar amendment at stage 2, I consider that his proposals should be progressed as part of the response to that consultation. I have already given him an assurance that that will happen, but I put it on record again. We are planning a revision of the Parole Board rules at a later stage, once all potential changes to the rules have been identified. If Gordon Lindhurst’s amendment 3 is not agreed to, and he wants to discuss the proposal with me in advance of that process, I would be more than happy to have such a discussion.
Notwithstanding my views on the appropriateness of such matters being dealt with in primary legislation, I have considerable concerns about aspects of amendment 3 relating to the clarity of some of the terms that are used and the scope of the provision. I can expand on those matters if members would like me to do so. For those reasons, I urge Gordon Lindhurst not to press amendment 3 and I ask members to reject it, if he does.
My amendment 125 seeks to amend section 40A of the bill, which was inserted at stage 2 by an amendment in the name of Mary Fee. Section 40A would make it mandatory that, before making a recommendation to release a prisoner under section 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, the Parole Board take into account the impact of its decision on the prisoner’s family and the ability of the prisoner to reintegrate with their family. I say at the outset that I am sympathetic to the intention of that provision. It is only fair to put on record the tremendous amount of work that Mary Fee has done in relation to the families of people who are in prison. It is also worth putting on record the great work that is done in that context by organisations including Families Outside, which has informed many parliamentarians about the impact of imprisonment on family members.
However, I have various issues with the provisions of section 40A. There is a lack of qualification and specification in respect of who would be considered to be a “family member”. In addition, the requirement that it provides for would be mandatory, regardless of its relevance in individual cases. For example, when the prisoner has no intention of contacting the family, the requirement would not be appropriate. I also believe that it could be difficult for the Parole Board to satisfy the requirement in all cases—I am thinking of the need to obtain the views of the family to enable them to consider the impact that the prisoner’s release might have on them.
I have lodged amendment 125 to adjust the powers to make the Parole Board rules of procedure include specific reference to consideration of the “likely impact” of any recommendations of the Parole Board on prisoners’ families. I believe that that is a more flexible approach that will include in the 1993 act reference to the impact on a prisoner’s family of a recommendation to release, but will allow for detailed provision to be made in the Parole Board rules, where I consider such provision would be better placed, as I said of Gordon Lindhurst’s amendment 3.
Therefore, I urge members to support amendment 125.
Liam McArthur
I advise the cabinet secretary that he might come to regret the claim that he never aims to disappoint, but I assure him that we will support amendment 125. We recognise that this is an area in which Mary Fee has done a huge amount of work and made great strides, not just when she was a member of the Justice Committee but during her time in Parliament.
I thank Gordon Lindhurst for bringing amendment 3 back at stage 3. He set out the case well to the committee at stage 2. I am grateful to him for sharing the correspondence that he and the cabinet secretary have had in the interim.
16:45Although I accept the cabinet secretary’s point about not wanting to build in too much rigidity to the work of the Parole Board for Scotland, it is difficult to see the general principles that are set out in amendment 3 altering over time. The point was well made that the wording reflects what is already in the Mental Health (Care and Treatment) (Scotland) Act 2003. For that reason, we will support amendment 3.
The Presiding Officer
I invite Gordon Lindhurst to wind up or to add any comments, and to press or seek to withdraw amendment 3.
Gordon Lindhurst
I have nothing further to add.
I press amendment 3.
The Presiding Officer
The question is, that amendment 3 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Rennie, Willie (North East Fife) (LD)
Rumbles, Mike (North East Scotland) (LD)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 49, Against 64, Abstentions 0.
Amendment 3 disagreed to.
Section 40A—Parole Board decisions: consideration of impact on prisoner’s family
Amendment 125 moved—[Humza Yousaf]—and agreed to.
After Section 43A
Amendments 126 and 127 moved—[Humza Yousaf]—and agreed to.
Amendment 2 moved—[Daniel Johnson].
The Presiding Officer
The question is, that amendment 2 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Russell, Michael (Argyll and Bute) (SNP)
Scott, Tavish (Shetland Islands) (LD)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 50, Against 63, Abstentions 0.
Amendment 2 disagreed to.
Amendment 128 moved—[Daniel Johnson].
The Presiding Officer
The question is, that amendment 128 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Scott, Tavish (Shetland Islands) (LD)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 44, Against 68, Abstentions 0.
Amendment 128 disagreed to.
The Presiding Officer
Group 10 is on Parole Board for Scotland recommendations: publication of test. Amendment 129, in the name of Daniel Johnson, is the only amendment in the group.
Daniel Johnson
As we have already heard this afternoon, the Parole Board plays an important role in our justice system, but it can be finely balanced, and the Parole Board’s processes are not always obvious to those outside the criminal justice system. I believe that one of the most important things that we must pursue in the justice system is transparency, which is what amendment 129 seeks to do by setting out a statutory requirement for the Parole Board to specify the test or tests that it will apply when making its decisions.
The current position is that some tests are specified, but they vary and the legislation is silent in other areas. That leads to an inconsistent and confusing situation for all who are involved. The Parole Board raised the issue in its written evidence to the committee and I believe that the adoption of a test will enhance transparency in the justice system. I thank the cabinet secretary for the dialogue that we have had in this regard—it has been incredibly useful.
I point out to members that, although the amendment sets out the requirement for a test, it leaves it to the Parole Board to devise and publish the test. I believe that that approach provides for the flexibility that will be required in order to take the provisions forward.
I move amendment 129.
Liam McArthur
I understand the intent behind Daniel Johnson’s amendment, but I cannot help but observe that, in the space of two groupings of amendments, he has gone from standing up for the independence of the Parole Board to moving an amendment that cuts across some of that independence. Therefore, we will not be supporting amendment 129.
Humza Yousaf
I simply say that I welcome amendment 129. At stage 2, Daniel Johnson lodged a similar amendment and I indicated support of it in principle, subject to the removal of provisions that related to the publication of a summary of Parole Board recommendations, which I believed would be better suited to the Parole Board rules. I am therefore pleased that Daniel Johnson has agreed to remove the requirement to publish a summary of recommendations and I am happy to support his amendment.
Daniel Johnson
On Liam McArthur’s point, the critical point is that the amendment will not impose the test on the Parole Board; it simply requests that the Parole Board publish the test. The test will be for the Parole Board to devise, which I believe will leave the independence of the Parole Board intact.
The Presiding Officer
The question is, that amendment 129 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)
Against
Cole-Hamilton, Alex (Edinburgh Western) (LD)
McArthur, Liam (Orkney Islands) (LD)
Rennie, Willie (North East Fife) (LD)
Rumbles, Mike (North East Scotland) (LD)
Scott, Tavish (Shetland Islands) (LD)
The Presiding Officer
The result of the division is: For 107, Against 5, Abstentions 0.
Amendment 129 agreed to.
Section 43B—Offence of remaining unlawfully at large
Amendment 130 moved—[Daniel Johnson].
The Presiding Officer
The question is, that amendment 130 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McDonald, Mark (Aberdeen Donside) (Ind)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Scott, Tavish (Shetland Islands) (LD)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 45, Against 67, Abstentions 0.
Amendment 130 disagreed to.
Section 43C—Arrest where unlawfully at large
Amendments 131 to 133 moved—[Humza Yousaf]—and agreed to.
Section 43D—Amendment of oversight provisions
Amendment 134 moved—[Humza Yousaf]—and agreed to.
Section 46—Repeal of statutory provisions
Amendment 135 moved—[Humza Yousaf]—and agreed to.
Section 47—Meaning of the 1993 Act
Amendments 136 and 137 moved—[Humza Yousaf]—and agreed to.
After section 47
The Presiding Officer
Group 11 is on assessment of risk posed by offenders. Amendment 138, in the name of Liam Kerr, is grouped with amendment 139.
Liam Kerr
Amendment 138 deals with an issue that has concerned me right from the start. The Justice Committee’s stage 1 report recognised at recommendation 182 that:
“Robust risk assessment procedures are critical to the effective use of HDCs and other forms of electronic monitoring. The Committee agrees ... that decisions on electronic monitoring are informed by proper and appropriate assessments.”
I have listened throughout to the representations on the issue, and I acknowledge the cabinet secretary’s willingness to discuss it. However, I still come back to the same principle: surely, before we do anything to increase the number of people who are on electronic monitoring, we must have a robust and trusted assessment tool.
Amendment 138 simply requires the Scottish Government to develop that tool. It also requires the courts to have regard to the tool when disposing of cases, and requires ministers to publish a report on the operation of the risk assessment tool.
At stage 2, it was said that there have been some improvements to HDC assessments, but I come back to the point that we cannot be too restricted in our focus on home detention curfew. We must apply rigorous risk assessment across all early releases from prison. Furthermore, the cabinet secretary said that it was not clear what the tool would look like, but that is for the Scottish Government to determine, as amendment 138 clearly sets out. Flexibility for different forms of release on licence is not precluded.
For those reasons, the bill requires the safety and reassurance that would be provided by a risk assessment tool, and I commend the amendment to members. For similar reasons, and for the avoidance of doubt, we will vote for amendment 139, in the name of Daniel Johnson.
I move amendment 138.
Daniel Johnson
As Liam Kerr has pointed out, the assessment of risk is absolutely critical to the bill, following the events that have informed its passage. I will quote, not for the first time, from the HM inspectorate of prisons for Scotland report:
“Whilst an assessment process clearly existed, it may not be regarded by some to meet the definition of ‘robust’.”
That is a clear call for a robust system of risk assessment to be put in place and for that to be required by law.
I recognise that amendment 127 puts in place guidance on that, and that goes a long way towards meeting those requirements. However, as I said previously, there is no legal requirement to apply that guidance, which weakens it. Although there might be recourse to judicial review, as members will know, you need particularly deep pockets to take such a course of action.
The bill would have been stronger if there was a legal requirement to apply the guidance and for risk assessments to be carried out for people who are being put on HDC, and that should have been stipulated in black letters on the face of the bill. It is a matter of regret that the Government is opposing that this afternoon.
17:00Humza Yousaf
Risk assessment was discussed in some detail at stage 2 and I lodged amendment 127 at stage 3 to address some of the concerns. At stage 2, the Risk Management Authority wrote to the Justice Committee to express its concern about what was being proposed by Liam Kerr in relation to the development of a risk assessment tool.
I know that the Risk Management Authority and the Parole Board have written again to the Justice Committee to express their concern about the return of similar amendments—amendments 138 and 139—at stage 3. The Scottish Government’s approach of setting out the detail of risk assessment in an operational protocol, which must be laid before Parliament, as I said, provides further reassurance about risk assessment arrangements, without presenting some of the practical problems that amendments 138 and 139 would cause.
Amendment 138 is identical to Mr Kerr’s amendment on risk assessment that was rejected at stage 2. Accordingly, all the arguments that were presented against the amendment at stage 2 continue to apply. Namely, there is no definition of “risk assessment tool”, so it is difficult to determine what the Scottish ministers would need to do to comply with the obligation. It is not clear what sort of risk assessment tool would require to be created. Would it be one to assist the decision to release a prisoner or one to assist the management of risk once the prisoner is released?
The creation of one risk assessment tool for all forms of early release on licence—temporary release, HDC and parole—would overlook the very different natures of those various forms of early release. The duty to create a risk assessment tool would apply to all forms of release from prison, including automatic early release and release at the end of a prisoner’s sentence. The Scottish ministers would be obliged to create a risk assessment process to assess the risk that was posed by a prisoner whom they were duty bound to release and who would be released unconditionally.
Amendment 138 would also duplicate existing risk assessment processes across all forms of early release on licence. There are existing statutory provisions that require risk assessments for the purposes of HDC, temporary release and parole. There is a duty to consult certain bodies, and it might be implied that those bodies are to have regard to the risk assessment tool. One of the bodies that must be consulted is the Parole Board, which is completely independent of the Scottish ministers. Any implication that the Parole Board is bound by a risk assessment that is developed by the Scottish ministers could call into question that independence. That could give rise to a potential challenge to the Parole Board’s decisions on parole under article 6 of the ECHR, which covers the right to a fair trial. Indeed, the Parole Board expressed concerns about such an amendment and wrote to the Justice Committee about the matter at stage 2 and ahead of stage 3, so it is disappointing that those concerns seem to have been ignored.
Amendment 138, as drafted, would mean that courts would have to take account of the tool when imposing a community sentence that is listed in section 3(2). In imposing a community sentence, the court is not assessing risk for the purposes of release from prison, so such a risk assessment tool would have very limited relevance. Courts are experienced in making assessments of risk, and we must guard against creating legislation that risks impinging on judicial independence.
I also note that amendment 138 seeks to reintroduce into the bill the word “offender”, which the committee sought to exclude at stage 2 and which Parliament has sought to exclude at stage 3.
Amendment 139 would duplicate the existing statutory requirement to conduct a risk assessment for the purposes of releasing a prisoner on HDC. In addition, and more pressingly, there is a significant drafting concern that would make amendment 139 unworkable as a risk assessment provision if it were to form part of the bill. The wording of the proposed new section makes it clear that it would apply when a person was subject to a curfew condition. That means that the section would apply only after a decision to release was taken and would preclude any of the provisions being applicable to pre-release risk assessment. Accordingly, the duties relating to risk assessment in proposed subsections (2) and (3) would be impossible to comply with, as those duties would apply only to prisoners who had already been granted HDC.
Amendments 138 and 139 seek to address risk, but primary legislation already requires that risk assessment be carried out prior to releasing an individual on HDC, temporary release or parole. Amendment 127, in my name, would place an obligation on the Scottish Government to prepare and publish an operating protocol on HDC that would set out the procedures behind the HDC regime, including the process for risk assessment, as I have said. I believe that that approach is more robust than what is proposed in amendments 138 and 139, and it would meet the intention behind those amendments of ensuring greater transparency in the risk assessment process.
Accordingly, I urge members to reject amendments 138 and 139, which are unnecessary and, in places, unworkable and should not form part of the bill.
The Presiding Officer
I call Liam Kerr to wind up on this group of amendments.
Liam Kerr
I have nothing particular to add, other than to say to the cabinet secretary that it is abundantly clear from the drafting of the amendments what would be involved. I said specifically that other forms would not be precluded. I agree that it is regrettable that the cabinet secretary does not support the development of a robust risk assessment tool. I press amendment 138.
The Presiding Officer
The question is, that amendment 138 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 44, Against 68, Abstentions 0.
Amendment 138 disagreed to.
Amendment 139 not moved.
The Presiding Officer
We move to group 12, which is on mandatory fatal accident inquiry where person subject to a curfew condition commits murder. Amendment 140, in the name of Neil Bibby, is grouped with amendments 140A and 141.
Neil Bibby (West Scotland) (Lab)
Members on all sides of the chamber will be well aware of the tragic case of Craig McClelland. His murder should never have happened, and it should never have been allowed to happen. As the committee noted in its stage 1 report, the justice secretary asked both HMIPS and HMICS to conduct reviews of the HDC regime. However, those reviews were described simply as process reviews by the Government, and they were not specifically tasked with looking at what went wrong in the McClelland case and why.
Recommendations were made, some of which are being acted on today, which is welcome. The reviews also established that there had been significant failings leading up to the murder. However, there has not been a specific inquiry into why it was allowed to happen and whether it could have been prevented. I believe that a full independent inquiry is required to investigate the system failures that led to Craig McClelland’s death, to help the McClelland family to find the answers that have been eluding them, to hold the state and the authorities to account, to do so under the independent leadership and direction of a sheriff, and to allow the sheriff to make recommendations on what has to change if this kind of tragedy is to be prevented in the future.
An inquiry is not just in the interests of a family that is searching for answers; it is clearly and demonstrably in the public interest too. If an independent inquiry is not granted willingly by the Government, or by the Lord Advocate using his discretionary powers, the law must change to make it mandatory. Section 2 of the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016 should be amended to include cases in which a murder is committed by a prisoner on HDC. If a fatal accident inquiry is commonplace for deaths on the prison estate, why, as a principle, is it not automatic in cases in which a prisoner commits a murder in the community?
The amendment differs from the amendment that I brought before the committee at stage 2. The cabinet secretary was concerned then that the drafting had been too broad and that I had not specified which deaths would be captured by the provisions. The redrafted amendment clarifies that they would apply only to cases in which a murder is committed by someone subject to a curfew condition.
There was also some debate at stage 2 over whether it was right that the Parliament, so soon after the passage of the 2016 act, should review whether FAIs are mandated automatically. It is my judgment that the circumstances of the McClelland case are so important that timing becomes a secondary consideration. When someone on a tag commits a murder, the system has failed, and there absolutely must be an inquiry. It is not a technical or legalistic question—in fact, there should be no question about it at all. If Parliament believes that tag murders should be subject to the FAI regime as a matter of principle, it can vote to change the law today and make it happen.
More than 5,000 people have signed a petition calling for an inquiry to take place, not just in this case but in any other tag murder. The power to change the law and do right by the McClelland family is in our hands. I urge members on all sides of the chamber to back my amendment, do the right thing and do what it takes to ensure that the lessons of this tragedy are fully learned.
I move amendment 140.
Liam Kerr
I am pleased to support this cross-party effort to ensure not only that Craig McClelland’s family will get the answers that they have been denied, but that other such tragedies and failures of the justice system will be comprehensively investigated in the future. My amendment 140A expands the scope of Neil Bibby’s amendment to cover all prisoners who are released from prison on licence. I see no reason why there should not be a robust inquiry into every death that is caused by someone who is released early from prison, because the authorities that are responsible for the release have to be answerable in those cases.
I move amendment 140A.
John Finnie
This debate is fundamentally about whether the discretion that is afforded to the Lord Advocate to act in the public interest is sufficient to address the concerns that have been discussed or whether it should be in the bill that there should always be an inquiry. The obligation is to act in the public interest and it is unquestionable that the public interest would be served by having an inquiry in this instance. However, I do not support inquiries being mandatory.
As a second issue, I wonder whether the amendment is limited by having the word “murder” in it. If a death resulted in someone having a finding of culpable homicide, the provision would appear not to apply.
The discretion should remain with the Lord Advocate and I hope that he will exercise discretion to hold an inquiry in this instance.
Liam McArthur
I commend Neil Bibby for lodging his amendment 140 and heeding some of the issues that were raised at stage 2. He is absolutely right to point out that in this case it is the McClelland family who are left waiting for answers, but for the public more generally, the absence of answers on what went wrong and how we go about putting that right heightens the level of risk. Although I accept John Finnie’s concerns around the issue of the Lord Advocate’s discretion, the concern is that the fatal accident inquiry system is encountering far too many delays, and that needs to be addressed. For that reason, we will be supporting amendment 140.
Johann Lamont (Glasgow) (Lab)
This debate around curfew measures and so on has been part of parliamentary debate since the very first days of the Parliament. It is essential, if we are going to move to this system and give it more support, that people feel confident that it will be monitored properly and that there will be consequences to a breach.
If someone kills another person in prison, there would automatically be a fatal accident inquiry. For somebody whose liberty has been restricted on a home detention curfew, logic tells me that there should be a fatal accident inquiry then, too. It is essential to have confidence in a system that does not treat those examples differently but recognises that the same thing has happened. John Finnie spoke about an inquiry not being mandatory, but it is mandatory if the death happens in prison or a care setting—we have to explain why it would not be mandatory in those circumstances.
I believe that it is our duty not just to support individuals who come to us in tragic circumstances, but to understand why it has happened and look at the process, system or law that is not doing the right thing. Amendment 140 simply ensures that the experience of people like the family in this circumstance are treated the same as they would have been if the death had happened in prison itself. I would be very pleased if there was cross-party support for recognising a gap in a process and giving confidence to the system by addressing it with amendment 140.
17:15Humza Yousaf
I once again put on record my sympathy and that of the Government for the McClelland family. A number of members from across the chamber have met the family and come to me and the Lord Advocate to speak about changes in the law and improvements related to circumstances around this case that they may want to see. I thank members for the constructive way in which they have had those conversations, where there has been agreement and where there has not been agreement on the way forward. I do not doubt the sincerity of everybody involved in trying to get a better system around HDC after the tragic murder of Craig McClelland.
Amendment 140 is similar to one that Neil Bibby lodged at stage 2. As I say, I remain sympathetic to its aims, but the Scottish Government must resist it for the reasons that I outlined at stage 2. The categories of mandatory FAIs were considered and legislated for in the context of the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016, which Parliament passed with unanimous support.
Johann Lamont
I understand the argument about timing, but the McClelland case challenges what the 2016 act offered, and so we need to address the issue. The amendment is straightforward—it is about expanding the categories. An FAI is already mandatory if a person murders someone in prison but not if the person is outside prison, with the same conditions as they had in prison. That issue has emerged since the 2016 act was passed, and surely we have a responsibility to respond to that, using the bill as a means to do so.
Humza Yousaf
It is worth giving some of the context to the changes that were made in 2016. That happened after a careful review by Lord Cullen and lengthy consultation and parliamentary consideration.
On Johann Lamont’s point about bettering the system of HDC after a tragedy, we should of course not be closed minded to changes after a terrible tragedy such as the one that the McClelland family have suffered. That is why we now have in place a more robust and better HDC process, which came on the back of the independent inspectorate’s review.
The end result of our considerations in 2016 was a scheme that specified a mandatory FAI in the narrow circumstances of death in custody and death in the course of a person’s employment. We have to take great care before we make any changes to that approach, which, as I said, followed lengthy consultation and consideration.
I do not favour the addition of further categories of mandatory FAI, as that would fetter the Lord Advocate’s discretion and might, for example, result in a requirement to hold an FAI even if the circumstances are straightforward, albeit tragic, and the bereaved families do not want one. Where the circumstances justify it, the Crown will undertake a death investigation and may, in addition to any criminal proceedings, investigate any other matters that bear on the circumstances of the death. Indeed, the Crown can instruct a discretionary FAI. In the tragic case of Craig McClelland, the Crown has the ability to instruct an FAI, and that matter currently sits with the independent Lord Advocate for consideration. The Crown will always engage with the families of the victims in that regard, in the context of the criminal proceedings and under the family liaison charter in relation to any wider death investigation.
Accordingly, there are mechanisms whereby, where it is appropriate, an investigation will be undertaken in such cases. The ordinary course under the 2016 act is that, even in the case of mandatory FAIs, the Lord Advocate may determine that the circumstances have been adequately established in related criminal proceedings and that, on that ground, an FAI is not justified. There is no equivalent qualification in the proposed amendment, which relates to situations in which related criminal proceedings are certain to happen. I know that amendment 140 has been lodged by Neil Bibby following the tragic case of Craig McClelland. As I said, the Lord Advocate is considering the specific circumstances of that case and of course it is for him to make that determination.
There are some points on drafting. First, the requirement for a murder conviction might produce odd results if an FAI was required in that circumstance but not where there is a culpable homicide conviction, as John Finnie mentioned. Secondly, it would be strange for an FAI to be mandatory in the case of a murder committed by an individual on HDC but not in the case of a murder committed by an individual on parole or temporary release. Thirdly, it is most unusual to make retrospective provision in any legislation and a specific policy justification would be required. Given the existing powers to order a discretionary FAI, I am not convinced that retrospective application of the provision is justified.
For the reasons that I have provided, I ask Neil Bibby not to press amendment 140. If he does so, I urge Parliament to reject it.
Amendment 140A in the name of Liam Kerr would make a minor change to amendment 140 to refer to those released on licence under section 3AA of the 1993 act rather than those subject to a curfew condition under section 12AA of that act. Those two groups are the same, as those released on HDC licence under section 3AA will be subject to a curfew condition under section 12AA. In any event, as I urge the Parliament to reject the underlying amendment 140, I also urge Parliament to reject amendment 140A.
Amendment 141, in the name of Neil Bibby, would add amendment 140 to the list of provisions in section 49 of the bill that are to be commenced once the bill receives royal assent. Again, as I urge the Parliament to reject the underlying amendment 140, I also urge Parliament to reject amendment 141.
Neil Bibby
We have heard a number of different arguments in the chamber, but I have not heard a principled argument against making a fatal accident inquiry automatic in cases such as this one, and members should be in no doubt that it is a matter of principle. The precedent that the Parliament can legislate to mandate a fatal accident inquiry has already been set. The question for members in the chamber today is whether we believe in principle that inquiries into tag murders should be required. I believe that they should, and I believe that any change in the law should be backdated to include the McClelland case.
I also believe that a full independent inquiry is essential if we are to restore public confidence in HDCs and the justice system. As Johann Lamont said, if, after everything that they have been through, the family of Craig McClelland still do not have confidence in the HDC system, how can any of us who are passing the legislation today? What happened to Craig McClelland should never have happened. It was a tragic failure of the system that should have kept him and his community safe.
Across the chamber, there are MSPs who believe that a fatal accident inquiry is needed and I welcome what John Finnie said about that in his contribution. There are more than 5,000 people in our communities who agree that the inquiry should have started by now. To the members who are saying that amendment 140 is not needed, or that the Lord Advocate has discretionary powers, I say that this tragedy is a case study in why they are wrong. The amendment is necessary because there has not been a public inquiry. The amendment is necessary because the Lord Advocate has yet to instruct a fatal accident inquiry and there is nothing in the statute that compels him to do so.
I will support amendment 140A in the name of Liam Kerr because I can accept the argument for extending the scope of my amendment, but I cannot accept that my amendment is unnecessary.
Throughout stage 2 and stage 3, we have heard the Government and members set out positions that search for arguments, rather than make arguments to justify their positions. Disgrace is an overused word in political debate, but I have no hesitation in saying that it would be a disgrace if the amendment was to be defeated today.
However, defeat of the amendment would not mark the end of the fight for a fatal accident inquiry. I say to all those who have expressed sympathy with the family, to all those who have been shocked and moved by what has happened, to all those who are appalled at the indifference with which the McClellands have been treated, and to the Lord Advocate, too, that, come what may, the case for an inquiry into the McClelland case is impossible to ignore and it is unthinkable that it should be refused.
The Presiding Officer
I call Liam Kerr to wind up and to press or withdraw amendment 140A.
Liam Kerr
I wish only to add that I associate myself and my colleagues with Neil Bibby’s comments and I press amendment 140A in my name.
The Presiding Officer
The question is, that amendment 140A be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Rennie, Willie (North East Fife) (LD)
Rumbles, Mike (North East Scotland) (LD)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 50, Against 63, Abstentions 0.
Amendment 140A disagreed to.
The Presiding Officer
The question is, that amendment 140 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Rennie, Willie (North East Fife) (LD)
Rumbles, Mike (North East Scotland) (LD)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 50, Against 62, Abstentions 0.
Amendment 140 disagreed to.
The Presiding Officer
Group 13 is on restriction of liberty orders. Amendment 147, in the name of Margaret Mitchell, is the only amendment in the group.
Margaret Mitchell
Amendment 147 is similar to my previous amendment at stage 2. It seeks to amend the Criminal Procedure (Scotland) Act 1995 and to impose particular restrictions on the liberty of offenders. In particular, it is intended to focus on domestic abuse cases in order to prevent offenders from causing further distress.
At stage 2, the cabinet secretary expressed concern because examples including a partner’s house and a child’s school were explicitly mentioned in the amendment and therefore would be in the bill. In response, I have removed the four examples, thereby leaving it to Scottish ministers to specify places that must be excluded. As such, amendment 147 would provide an extra safeguard to domestic abuse victims when perpetrators are released with an electronic tag.
I move amendment 147.
Fulton MacGregor
As the convener of the Justice Committee has said, a similar amendment was debated at stage 2. I am still not clear what practical difference amendment 147 would make. Courts can already designate specified places in a restriction of liberty order, and do so regularly. I acknowledge that the convener of the Justice Committee is attempting to work alongside Women’s Aid, but I am not sure that the amendment will deliver on the key concerns because it is limited to only one form of monitoring. The recent Domestic Abuse (Scotland) Act 2018 takes a much more holistic approach to tackling the scourge of domestic abuse, and I do not think that the amendment goes anywhere near to achieving that.
Humza Yousaf
Some of the challenges with amendment 147 remain as they were when an amendment in largely similar terms was lodged and rejected at stage 2.
I do not believe that there is a requirement for the additional ability for ministers to prescribe a “specified place”. Courts are already able to restrict people who are on RLOs from or to a broad range of types of specified places under the current radio frequency system. People can currently be restricted, for example, from a partner’s house, and under the current service, courts have also used electronic monitoring to make a local supermarket a “specified place” in order to deter a persistent shoplifter.
Under section 245A of the Criminal Procedure (Scotland) Act 1995,
“A restriction of liberty order may restrict the offender’s movements to such extent as the court thinks fit and, without prejudice to the generality of the foregoing, may include provision—
(a) requiring the offender to be in such place as may be specified for such period or periods in each day or week as may be specified;
(b) requiring the offender not to be in such place or places, or such class or classes of place or places, at such time or during such periods, as may be specified”.
Those are already broad powers. The GPS monitoring capabilities, when introduced, will just change the ways in which those specified places are monitored. We do not see any need to change how specified places are defined. Indeed, there is a significant risk that, if ministers were to further prescribe in legislation the places that can be specified in an RLO, that might limit the power of the court to specify only the places that are prescribed.
We are unsure why the ability to prescribe the places that may be specified in an RLO, if it were to be beneficial, would not extend to other forms of electronic monitoring, such as monitoring of licence conditions or of sexual offences prevention orders.
17:30Overall, the bill has largely sought to leave untouched the underlying orders that can be monitored electronically, because to do otherwise risks opening up a number of unintended consequences that we have not had the opportunity to consider as part of the evidence that has been taken on the bill to date. On the basis that I cannot see a clear benefit from an amendment of this nature, I urge Margaret Mitchell not to press amendment 147. If it is pressed, I urge members to reject it.
Margaret Mitchell
I will respond to Fulton MacGregor and to the cabinet secretary’s point about courts most certainly having the power to list specific places from which a perpetrator could be excluded. In reality, and in practical terms, procurators fiscal are often under such pressure that they are handed case notes as they go into court, so they might not be in possession of the full facts, including areas that should be specified as exclusion zones. My amendment 147 would allow that to be rectified by giving ministers the power to fill in the gaps.
I press amendment 147.
The Presiding Officer
The question is, that amendment 147 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 27, Against 87, Abstentions 0.
Amendment 147 disagreed to.
Section 49—Commencement
Amendment 141 not moved.
The Presiding Officer
We turn to group 14, which is on commencement provisions. Amendment 142, in the name of Liam Kerr, is the only amendment in the group.
Liam Kerr
One of the consequences of the bill should be considerable expansion in use of community sentences—the context being that nearly one in three of those is not completed. In relation to the draft Presumption Against Short Periods of Imprisonment (Scotland) Order 2019, the Justice Committee heard that there are already a number of challenges in the community sentencing system. I cannot see that it would be wise to increase significantly the numbers going into that system without having ensured, first, that such challenges have been addressed and, secondly, that the stated goals of promoting rehabilitation and preventing reconviction are achievable.
To that end, it seems to me to be sensible to put increased resources into the community system and to deliver a modest improvement to the completion rate, then to start from a position of strength and confidence when pushing more criminals into that system.
At stage 2, some members of the Justice Committee raised points about the complex reasons for community orders not being completed and the fact that the lifestyles of people who are on such orders are often chaotic. I do not dispute those factors, but I think that they make my point for me. Before pushing more offenders into the community sentencing system, we surely need to reassure ourselves that services will be there to support them in serving such sentences. If that support is not there—or might not be there—those offenders should not be in the community. That is a key point.
Victim Support Scotland told the Justice Committee that
“communities have no faith in community sentencing.”
I will take its word for that. The basic improvement that amendment 142 calls for would help to give confidence to the public and victims that community orders are a robust alternative to prison sentences. We must set ourselves a high bar in order to ensure that community orders are as much of a deterrent as prison sentences, that they keep the public and victims safe, and that they are seen to achieve the punishment that is one of the tenets of the sentencing system. To that end, I have lodged a modest amendment that might help to achieve that.
I move amendment 142.
Daniel Johnson
I rise to speak briefly against amendment 142, which is simply a wrecking amendment. I also think that it is based on a false premise. Nothing in the bill necessitates expansion of community orders or increased use of tags; it simply allows new technology to be applied. I agree with one thing that Liam Kerr said: there should be a considerable increase in investment in community sentences. That is required because we do not spend enough to make them successful. However, the amendment would result in considerable delays to introduction of the new, useful and valuable technology for tagging, which I do not think is acceptable.
Liam McArthur
I entirely agree with Daniel Johnson that amendment 142 seems to be a wrecking amendment. All the evidence shows that community-based sentences have a better track record in rehabilitation than incarceration does—in particular, short prison sentences. By Liam Kerr’s own logic, the current lack of resources in the Prison Service to support people as they emerge back into the community would suggest that we should not send them to prison in the first place. Therefore, I will oppose the amendment, as I did at stage 2, because I think that it stands the evidence on its head.
Humza Yousaf
I thank Daniel Johnson and Liam McArthur for their contributions. I, too, urge members to reject amendment 142. It is similar to amendments that Liam Kerr lodged at stage 2 that were rejected by the Justice Committee.
On the effects of amendment 142, it would seem to be perverse to tie commencement of the bill to community payback order completion rates. The provisions of the bill will allow electronically monitored restricted movement requirements to be imposed as part of a CPO as a first disposal in a case. We know that when similar requirements have been imposed through restriction of liberty orders, completion rates have exceeded 80 per cent. Mr Kerr’s amendment would insist that completion rates increase first, and that only then would the tools that the bill offers to improve completion rates become available. That is like saying that you can have the Allen keys only after you have finished assembling the flat-pack furniture.
Amendment 142 is all the more bizarre because it links CPO completion rates to commencement not only of the parts of the bill that are about CPOs, but everything in it. Why should the coming into force of the rules about disclosure of convictions, the power to arrest prisoners who are unlawfully at large, or the provision about appointments to the Parole Board depend on CPO completion rates? That does not make any sense.
Liam Kerr talks about ensuring that CPOs are “a deterrent”. Unfortunately, people who are given short prison sentences—which we are looking to introduce a presumption against, which his party rejected—are reconvicted nearly twice as often as those who are given community alternatives. By Liam Kerr’s logic, short custodial sentences are in no way a deterrent, so where would people who have committed a crime end up? For all those reasons, and for the reasons that were given by Daniel Johnson and Liam McArthur, I urge members to reject amendment 142.
Liam Kerr
Amendment 142 is not a wrecking amendment. I am a bit disappointed by the lack of ambition that has been shown by the members who spoke. I still cannot accept that it is not sensible to ensure that the system is working before increasing the pressure on it. In that regard, I remain on the side of Victim Support Scotland, even if no one else does.
For that reason, I press amendment 142.
The Presiding Officer
The question is, that amendment 142 be agreed to. Are we agreed?
Members: No.
The Presiding Officer
There will be a division.
For
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)
Abstentions
Fraser, Murdo (Mid Scotland and Fife) (Con)
The Presiding Officer
The result of the division is: For 26, Against 86, Abstentions 1.
Amendment 142 disagreed to.
Schedule 1—Court orders and electronic monitoring
Amendment 143 moved—[Humza Yousaf]—and agreed to.
The Presiding Officer
That ends consideration of amendments. As members will be aware, I am required under standing orders to decide at this stage whether any provision in the bill relates to a protected subject matter—that is, whether the bill modifies the electoral franchise or system for Scottish parliamentary elections. In my opinion, the bill does not, therefore it does not require a supermajority at stage 3.
17:41 Meeting suspended.17:51 On resuming—
25 June 2019
Final debate on the Bill
Once they've debated the amendments, the MSPs discuss the final version of the Bill.
Final debate transcript
The Deputy Presiding Officer (Linda Fabiani)
The next item of business is a debate on motion S5M-17893, in the name of Humza Yousaf, on stage 3 of the Management of Offenders (Scotland) Bill. I ask those who wish to speak in the debate to press their request-to-speak buttons.
The Cabinet Secretary for Justice (Humza Yousaf)
Thank you, Presiding Officer. After seeing you banging the gavel just now, I am reminded never to get on your wrong side.
I am very pleased to be opening the stage 3 debate on the Management of Offenders (Scotland) Bill. First, I thank the members and clerks of the Justice Committee for their thoughtful and diligent consideration of the bill at stages 1 and 2. We have not agreed on everything—nor should we in such matters—but the conversation has been both sincere and constructive.
As members will know, additional evidence was taken on the bill in the light of the tragic murder of Craig McClelland, which was referenced by members during the consideration of stage 3 amendments, and I again extend my sympathies to his family. In June 2018, we were asked by Craig’s family to respond to the circumstances of his death and we were also asked by members of the Parliament how we would respond. I know that, for example, Ruth Davidson asked us to consider the creation of a further offence. We have listened and we have responded.
We accepted that an additional punitive element was needed for home detention curfew and that a new offence was appropriate. We created the offence that Her Majesty’s inspectorate of constabulary in Scotland recommended that we consider. The bill creates the new offence of remaining unlawfully at large and it improves the available powers of recall from home detention curfew. Those legislative measures sit alongside a significant number of operational improvements that have been made to HDC.
In May this year, the follow-up reports from Her Majesty’s inspectorate of prisons for Scotland and HMICS showed positive progress against their recommendations. I record my thanks to colleagues in Police Scotland and the Scottish Prison Service, and their respective inspectorates, for the work that they have undertaken to date to strengthen the HDC regime. I know that that is unlikely to provide much, if any, comfort to Craig’s family for the loss that they have suffered, but the improvements in the HDC regime were the right steps for us to take.
With the bill, we have sought to make important and progressive reforms that are designed to deliver on the Scottish Government’s commitment to reduce reoffending and ensure that Scotland’s justice system retains its focus on prevention and, importantly, rehabilitation, while maintaining public safety and enhancing support for victims. I think that we have got the balance absolutely right.
Part 1 of the bill provides for the expansion of electronic monitoring as part of our continued development of community-based alternatives to prison. The electronic monitoring provisions provide an overarching set of principles for the imposition of electronic monitoring. The bill provides clarity as to when and how electronic monitoring can be imposed, either by the courts in relation to criminal proceedings or by the Scottish ministers in relation to release on licence from detention or imprisonment. The bill also creates a standard set of obligations, which clearly describe what is required of an individual who is subject to monitoring.
The bill empowers ministers to make regulations to specify the types of devices that can be used for the purpose of monitoring. The introduction of new technologies, such as GPS technology, presents opportunities to improve the effectiveness of electronic monitoring, for example through the use of exclusion zones, which could offer victims additional reassurance.
Electronic monitoring using the radio frequency technology that we have available today has proved itself to be an effective tool for the justice system. We look forward to working with our partners in the justice system to develop services around the new technological uses that the bill enables. We will use electronic monitoring in a proportionate way to target further reductions in reoffending, providing structure to monitoring so as to keep people safe and secure and helping people to move on with their lives away from the justice system.
Part 2 of the bill is about reforming the system of disclosure of past convictions when someone seeks to enter general employment, for example by working in a shop or an office, or when they apply for home insurance. Members will be aware of the recently introduced Disclosure (Scotland) Bill, which seeks to reform the higher-level disclosure that is used to protect vulnerable groups. The Management of Offenders (Scotland) Bill does not directly change higher-level disclosure in any way.
Currently, disclosure periods are too long. That has created an imbalance between the need for general protection for the public and allowing people to move on with their lives. Part 2 seeks to rebalance that. The evidence is clear. A system that requires too much disclosure can have a negative impact on people’s lives. I was struck when members described how they had interacted with, for example, the Wise Group, which is an excellent organisation, noting that people who had committed crimes and had been in prison often talked about how they wanted to move their lives on. However, the stigma around disclosure and the practical impact of disclosure meant that there was at least a perception—if not the reality—that their CVs or job applications were put straight in the shredder once their disclosure information was received. The bill will reduce the periods of disclosure for the majority of sentences, it will bring more people within the scope of the protections under the Rehabilitation of Offenders Act 1974 and it will increase the clarity and accessibility of the terminology that is used in the legislation.
Part 2 of the bill will bring the most fundamental reforms of the Rehabilitation of Offenders Act 1974 in Scotland since it was introduced and will lead to the most progressive reforms of that legislation in the United Kingdom. I am pleased that part 2 received general support from the Justice Committee throughout stages 1 and 2.
Legislation is of course important but, clearly, so too is cultural change. That is why we have made a commitment to help to bring about a cultural change in this area. We will work with employers to help change their perceptions of people with convictions. People with convictions have much potential.
Part 2 will be an aid to tackling inequality. It will help prevent those who are already marginalised in our society from becoming more marginalised due to a lack of employment opportunities, which may result in their remaining involved with the criminal justice system. All the evidence and research in this area has shown that stigma can have an impact on employment, and that a lack of employment can have an impact on whether people continue to reoffend. As I often say in such debates, this is not about hard or soft justice but about smart justice. We believe that the proposed reforms will help to reduce reoffending.
Part 3 of the bill deals with matters relating to the Parole Board for Scotland and its activities. The provisions make some minor technical amendments to existing legislation; they make some changes to the appointment and reappointment arrangements for the Parole Board; they reinforce the continued independence of the Parole Board; and, importantly, they provide for the administrative and accountability arrangements of the Parole Board to be set out in secondary legislation.
Those are initial reforms and improvements. As I said in previous debates, the consultation on parole has closed, and we will analyse the results and take forward further changes.
The bill makes a number of important changes to improve the criminal justice system in Scotland. It positions us well as a country that is looking to the future, not just in how we embrace technological developments but, most important, in how we configure a justice system that is progressive and based on evidence of what is effective in reducing reoffending while—crucially—keeping people safe.
I move,
That the Parliament agrees that the Management of Offenders (Scotland) Bill be passed.
18:00Liam Kerr (North East Scotland) (Con)
I am pleased to have this opportunity to speak for the Scottish Conservatives on the Management of Offenders (Scotland) Bill.
The bill has, rightly, commanded a lot of time, both in committee and in the chamber, but it could be argued that it has not commanded enough time. I fear that there is a considerable chance that it will put the public at increased risk and deny justice to victims of crime. It is because of those implications that I reiterate the concern that I expressed at stage 1, which is that we have dealt with three considerable issues as one.
John Finnie (Highlands and Islands) (Green)
Does the member think that it is entirely responsible to say that the bill will put the public at increased risk?
Liam Kerr
It is entirely responsible to say what is the truth of the matter, which is that I think that the bill could put the public at increased risk, because of amendments having been disagreed to today. I will go on to talk about that.
We have rolled three issues into one.
Part 3 makes small reforms to the Parole Board for Scotland, the detail of which the cabinet secretary covered, but it has not had the attention, the coverage or the scrutiny that part 1 has had. It does not deal with the Michelle’s law campaign, explicit victim and family welfare assessments, more use of exclusion zones, allowing victims and families to attend and speak at hearings, et cetera. I am concerned that we have missed an opportunity to take a step back, review the whole Parole Board and its operation and introduce a bill that relates directly to that area.
I make the same point about part 2. Again, the cabinet secretary outlined to Parliament the principles in that regard. We know that getting a job is one of the best routes out of offending behaviour, and we know that it is difficult to strike the appropriate balance between the rights of society and employers to know about prior convictions and the ability of people with convictions to move on. We support the reforms, but they really should have commanded stand-alone scrutiny.
Part 1 is the most substantive section. It will see an increase in the number of criminals on tags in the community. In the stage 1 debate, I said clearly that at stages 2 and 3 we would have to see improvements to risk assessments and the response to breaches. However, we have not seen such improvements.
Of course, we are happy to support improvements to the technology of electronic monitoring. However, I remain concerned that the bill will extend its scope to ever more serious criminals, at the expense of public safety.
Daniel Johnson (Edinburgh Southern) (Lab)
Will the member take an intervention?
Liam Kerr
If it is very brief, please.
Daniel Johnson
Will the member substantiate his point? I do not understand why this bill will, of itself, increase the number of people who are out on tag. Other provisions that the Government introduces might have that effect, but this bill simply changes the technology, does it not?
Liam Kerr
No, I do not think that the bill simply changes the technology. The implication of what is proposed is that more people will be out on tag. I stand by that assertion.
Whatever the cabinet secretary’s assurances, the key public safety test has not been met. The cabinet secretary rightly reminded us of the reasons why the original bill was postponed and further evidence was taken. He talked about the shocking, unprovoked and devastating murder of Craig McClelland. Although there has been limited improvement to home detention curfew—and I am glad that the cabinet secretary acknowledged the pressure that came from Ruth Davidson to make that improvement—the reality is that that tragedy could have happened if the perpetrator had been on any type of early release.
Amendments in my name tried to address that issue. Throughout the process, I have tried to mandate a risk assessment tool. The Justice Committee demanded that, after all. Surely, before we do anything that increases the numbers on electronic monitoring, we need to have a robust and trusted assessment tool. However, Scottish National Party members voted down my proposed approach, and the record will show that the cabinet secretary said that it is not needed. I leave it to others to make the case otherwise.
I also argued that cutting off a tag should automatically constitute a criminal offence. I find it incomprehensible that the bill allows some offenders to cut off their tags and face no criminal sanction. The offence of remaining unlawfully at large is not good enough. It will not apply to people on community sentences who cut off their tags, and it will result in delays as the authorities establish whether an offender is unlawfully at large.
The SNP removed the power of arrest on suspicion, which I put into the bill, and decreased the minimum period that someone spends in jail before early release.
The SNP also decided that it was not appropriate to demand better completion rates on community orders, which, again, I struggle to understand. I acknowledge that there are reasons why completion rates are what they are, but before we put more people into that system, we should surely try to improve the rates to avoid the risk that the system becomes overloaded, which has consequences for the offender and for the safety of the public.
The record will show that I did what I could. I shall take no pleasure in being proved correct in the future.
On that note, I return to a point that I have made throughout the bill process. No matter to whom or which agency I posed the question, “What is most important in considering release on a tag—public protection, punishment or rehabilitation?”, no one would clearly say that public protection is paramount.
The ethos of the bill is something other than public protection. I think that it is about keeping people out of an expensive prison system and calling criminals “relevant persons” to avoid offending them. It is less about reconviction rates and more about saving money. In the ethos of the bill, those considerations figure more prominently than considerations of public safety and justice to victims.
I fear that the bill was proposed by the cabinet secretary’s predecessor in an atmosphere of complacency and with a view to extending tagging to inappropriate cases, and I fear that, with the bill, the Government has failed to learn the lessons of tragic cases such as that of Craig McClelland.
For those reasons and because of my fears for the consequences, the Scottish Conservatives cannot vote in favour of the bill today.
18:06Mary Fee (West Scotland) (Lab)
In opening for Scottish Labour, I thank the clerks and the members of the Justice Committee for their thorough scrutiny of the Management of Offenders (Scotland) Bill. The bill will strengthen the safety and security of communities around Scotland and will assist in keeping people out of prison.
During the stage 1 debate, when discussing electronic monitoring, I referred to the view of Families Outside, which said:
“Without structured supports in place,”
electronic monitoring
“becomes a purely punitive measure”.
Although I welcome the reforms to electronic monitoring, not a single penny of additional funding is being made available to address the underlying causes of criminal behaviour and, without that, we are setting people up to fail on release from prison.
For the reforms to be truly successful, they must be backed by substantial budgets for community justice, social work and wider services that tackle poverty and health inequalities and promote education.
I see that the cabinet secretary is desperate to speak.
Humza Yousaf
I hope that Mary Fee recognises that the criminal justice social work budget, which is to the tune of £100 million, has been ring fenced and that additional funding has been provided for community alternatives. I do not take away from her point that we should always continue to see whether we can increase that provision, but does she recognise that the criminal justice social work provision has been ring fenced and that there was an increase in the budget for community alternatives at the latest spending review?
Mary Fee
I recognise the points that the cabinet secretary made. However, if we are to be truly successful in rehabilitating individuals and keeping them out of prison, we need to fully resource and support not just them but their families. It is crucial that budgets are put in place to do that.
Individuals who are released on home detention curfew are often among the most vulnerable people in society and it is our duty to provide support. Doing so protects people with convictions and also supports victims and the wider community. Our current justice system frequently sets people up to fail. We must provide the support and services that people need on release from prison. That includes access to a general practitioner, housing support and a correspondence address.
The third sector has played a vital part in supporting people through the criminal justice system. The sector needs guarantees of funding to ensure that support remains in place to assist people away from a life of crime and of inequality. However, sadly, those guarantees are limited.
Electronic monitoring can support the rehabilitation and reintegration of people with convictions back into their community. However, to ensure that, those on release through electronic monitoring and home detention curfew must know what conditions are being placed on them.
I welcome the expansion of electronic monitoring, but the risk assessment processes relating to it must be strengthened and the multi-agency approach, as recommended by HMICS, must be put in place.
Many people in the chamber today have spoken about the tragic death of Craig McClelland, which serves as a reminder that public protection must be paramount. Craig’s family are also campaigning for authorities to learn further lessons from that tragedy, and we support their call that every murder that is committed by someone on a home detention curfew must lead to a fatal accident inquiry. I am grateful for the comments that colleagues made about Neil Bibby’s amendment 140 today, although I am—as the family will be—sad that the amendment was not agreed to.
I also welcome the new offence that was created at stage 2 in relation to those who breach their licence conditions. The new offence of being unlawfully at large must be robust, with the right support and powers being made available to police and prison services to prevent further deaths like that of Craig McClelland.
Before I finish, I want to discuss the provisions in the bill relating to disclosure of spent convictions. There can be no guarantees that people who have served a prison sentence will not face any stigma. However, we must act to ensure that any stigma does not prevent someone from living a full and meaningful life, working to provide for themselves and their families. We know that disclosure is complex and is, rightly, required to protect vulnerable groups. We support the reforms to disclosure that will encourage people with convictions to feel welcome in society and the workplace. The Scottish Government must raise awareness among the public, and, in particular, employers and businesses, to prevent stigma from limiting the opportunities to work for people with spent convictions.
I will finish by repeating the words of Families Outside, which stated:
“Without structured supports in place,”
electronic monitoring
“becomes a purely punitive measure”.
For the measures in the bill to be successful, we must provide the appropriate level of care and aftercare for people with convictions. That will benefit society as a whole.
I will be happy to vote in favour of this piece of legislation tonight.
18:12John Finnie (Highlands and Islands) (Green)
This is good legislation, and it is all the better for having been scrutinised in detail. I am, therefore, a bit surprised and disappointed to hear my colleague Liam Kerr suggest that the scrutiny was anything other than thorough. I do not recall any aspect that we did not look into, and, indeed, we deferred consideration in order to take additional evidence.
The case for reform was strongly made. There were consultations in 2013 and 2017. It is progressive legislation. We should not apologise for it or for where it sits in the criminal justice landscape, in relation to other provisions that have been talked about, including disclosure and the presumption against short sentences. Scotland has a shameful number of people in its prisons, and we need to empty some of those prisons and close them. We need to ensure that public safety is paramount, and electronic monitoring can play a part in that.
The consultations showed that the previous regime was viewed as being of a high standard, albeit that there were regional variations. When we talk about the use of technology, what we want is a uniform system that applies across our country, with all its challenges, so that everyone has access to all the programmes. Of course, punishment is a factor, but there is also a role for electronic monitoring to play in supporting rehabilitative purposes.
The Scottish Parliament information centre briefing mentions that the working group report says:
“EM is a versatile form of control which can be imposed either as punishment or to support rehabilitative purposes. The use of EM as a standalone punishment should remain a legitimate sentencing option. However, in its various forms EM should now become integrated with measures with a proven track record of preventing and reducing further offending which assist individuals to desist from crime.”
There are a lot of opportunities ahead, particularly with regard to organisations working together. I am talking about not only the statutory organisations but the many honourable groups in the third sector, which play a vital role.
Restriction of liberty orders, drug treatment and testing orders, community payback orders and sexual offence prevention orders all have a role to play in the system.
The suggestion of transdermal monitoring is interesting. I am sure that we want to future proof our legislation with regard to technology that might come on board.
At the end of the day, I hope that we never lose sight of the fact that it is actually humans that we are talking about—humans with housing needs and medical needs. Their humanity must come into the system, rather than the system being totally automated. We must take account of the individual and their circumstances.
The role that electronic monitoring can play pre-trial and in lieu of remand cannot be underestimated. For instance, it can play a role pre-release in allowing prisoners to go out to seek housing or to see a GP. In all that, the pivotal role of criminal justice social work is absolutely paramount.
Some of the licence conditions relating to location and alcohol and drugs are commendable. The concerns of Scottish Women’s Aid have been addressed in part by the way in which the legislation has been brought forward. We have heard repeatedly about the need for co-ordination of the public services—the police, the prison, the courts and social work—which is important. I have to say, in the brief time that I have left, that the role of a private company is out of step with that. I and the Scottish Greens would like to have seen services taken in house.
Where next? There are new technologies, and the direction of travel is more progressive. We must reduce the number of people in prison, by diversion from prosecution and many other methods. The legislation is very positive, and the Scottish Greens will be voting for it at decision time.
18:16Liam McArthur (Orkney Islands) (LD)
I thank those who gave evidence to the committee, our clerks, SPICe and others. I also thank my Justice Committee colleagues for the collaborative work that they did in scrutinising the bill. It was therefore all the more disappointing to hear Liam Kerr’s earlier remarks, which amounted to dog-whistle scaremongering. The inconvenient truth is that all the evidence suggests that short-term prison sentences are more disruptive and actually make communities less safe, so we will be supporting the legislation this evening.
Mary Fee made the entirely valid point that the way in which the bill is implemented will be crucial. In particular, as we heard time and again, the use of electronic monitoring for those who would have been released in any case would not be acceptable in terms of up-tariffing. The implementation needs to be properly resourced.
Similarly, resourcing will be key for electronic monitoring as an alternative to custody and holding people on remand. Electronic monitoring in itself is insufficient to address issues of public confidence. Without other supports around the individual concerned, it simply risks setting them up to fail. As Families Outside observed,
“Without structured supports in place, EM becomes a purely punitive measure that fails to address the reasons for the offending or to reduce the likelihood of breach due to pressures of unstable housing, substance misuse, poverty, chaotic environments, and damaging relationships”,
which Mary Fee also suggested. It must be about improving individuals’ chances of rehabilitation and reintegration in their communities while offering assurances to those communities. In many respects, that will be the measure of whether the legislation is successful, as we hope that it will be. It hinges, of course, on assessments and judgment of risk. As I said in the stage 1 debate,
“For those assessments to be robust, information and expertise have to be appropriately gathered and shared.”—[Official Report, 7 February 2019; c 75.]
Criminal justice social workers must have access to the information that they need in compiling their reports. Seeking views from everyone who may be affected, including family members, will be important in assessing an individual’s suitability for electronic monitoring.
Where electronic monitoring does not work, despite best efforts and best judgments, we must be prepared to act. I therefore welcome the decision to create a separate offence of remaining unlawfully at large. That is given added weight by the findings of the two inspectorate reports last autumn, and it is a sensible move towards giving the public reassurance while taking steps to make our criminal justice system more progressive.
Of course, that does little to address the loss and anguish that is felt by the family of Craig McClelland, who was so brutally and senselessly murdered in 2017. Despite those two inspectorate reports, the family is still waiting for answers as to what happened and how others can be spared the agony that they continue to suffer. With an appeal pending, that agony deepens. I was therefore disappointed that we did not agree to the amendments by Neil Bibby and Liam Kerr that would have made a fatal accident inquiry automatic in such circumstances.
As I have said before, the current delays in FAIs are unacceptable. The impact of delay on families who have lost loved ones is unimaginable, but it also prevents lessons from being learned and, where necessary, laws from being changed, which cannot be right.
The changes to the rules governing the disclosure of convictions to bring them more in line with the rules south of the border make sense. We now need employers to drop the simplistic and generally irrelevant tick-box approach to asking potential employees about convictions. We know that people can and do stop offending and that employment is often a key factor in that desistance. Therefore, in the interests of public safety, reducing the barriers to employment makes sense.
Passing legislation is inevitably the easy part. Making the changes a success will take effort, collaboration and resources. Although Scottish Liberal Democrats will support the bill at decision time, we will continue to hold Government to account to ensure that ministers will the means as well as the ends.
The Deputy Presiding Officer
We move to the open debate, with speeches of four minutes, please. I have a little time in hand for interventions if members wish to take them.
18:20Rona Mackay (Strathkelvin and Bearsden) (SNP)
As deputy convener of the Justice Committee, I thank the clerks for their hard work in helping us to get the bill to this stage—as always, they have done an excellent job. I also thank all the expert witnesses, who gave evidence with clarity and professionalism.
The bill is important and, as we have heard, it is complex in parts. It will pave the way for our work to assist a culture change in penal reform in Scotland. It is essential that we get it right, and I believe that the amendments that have been made have been beneficial to achieving that.
The three main parts of the bill are on the expansion and streamlining of the uses of electronic monitoring; a review of the Rehabilitation of Offenders Act 1974 to change the rules relating to disclosure of convictions; and a review and clarification of the role of the Parole Board for Scotland. The bill brings about a number of reforms that I believe are badly needed to ensure that Scotland’s justice system retains its focus on prevention and rehabilitation while enhancing support for victims.
We know that the key feature of electronic monitoring is risk assessment, which is why we believe that the measure should be used only after a comprehensive assessment is made that takes everything into account with regard to public safety. That is why amendment 127 was so important.
On compliance, we should not forget that, as the Law Society of Scotland briefing reminds us, many of those who are subject to electronic monitoring will be among the most vulnerable in society and will have chaotic lifestyles that prevent compliance with the provisions of such monitoring. It is therefore essential that the full remit of electronic monitoring is understood by those for whom it is an option and that the consequences of non-compliance are made clear to them. In addition, the public must have confidence that their safety will not be compromised by that disposal and all efforts should be made to highlight the reasoning for the measure, which is based on reducing reoffending and securing rehabilitation.
The committee highlighted the requirement for adequate budgets to be put in place for criminal justice social workers and services to support people who may be subject to such monitoring. Funding of such services, many of which are provided by excellent third sector agencies, is crucial to the success of any extended role for electronic monitoring and the Scottish Government’s commitment to the rehabilitation of offenders. I appreciate the cabinet secretary’s comments and the reassurance that he provided to Mary Fee.
Of course, it is vital to keep people out of prison wherever possible. We know the damage that imprisonment does to women, families and in particular children. Nancy Loucks of Families Outside has said:
“Electronic monitoring offers a valuable tool for reducing the use of imprisonment. Prison fractures families, whereas with the right support in place, electronic monitoring can keep families together, thereby maintaining social supports and reducing the risk of further offending.”
We know that short sentences do not work, which is why the Government’s presumption against short sentences is crucial and an important part of the reform jigsaw.
The Scottish Government has taken steps to bolster the law by creating a new offence of being unlawfully at large, which gives police more powers to apprehend prisoners who are escaping justice.
Liam Kerr
Does the member acknowledge that the offence of being unlawfully at large is actually quite restricted, as it applies only to certain categories?
Rona Mackay
It certainly applies to the most serious categories, which is what we are trying to address. I am not sure what that intervention was meant to achieve.
The parole reforms aim to simplify and modernise the process. The bill expressly states that the Parole Board will continue to act as “an independent tribunal” using professional expertise to ensure the safety of the public.
The Scottish Government is committed to ensuring that Scotland’s justice system retains its focus on prevention and rehabilitation while enhancing support for victims. I believe that the bill puts those priorities in place and provides a road map to a fairer and safer justice system for the people of Scotland.
18:24Maurice Corry (West Scotland) (Con)
I, too, thank the clerks to the committee for their hard work, and the witnesses for the evidence that they gave to the committee.
People in Scotland need to have the utmost confidence in their justice system. Our sentencing must be both credible and reliable. However, replacing more prison sentences with community sentences will not lead to the outcome that we all want, especially for victims of crime. Without adequate risk assessments or the possibility of a swift response to breaches of electronic monitoring, public confidence is dangerously taken for granted.
The Management of Offenders (Scotland) Bill seeks to promote an expansion to community sentencing as well as reforms to parole and the disclosure of convictions. Those reforms may be positive steps forward in the right direction; however, it is the expansion of electronic monitoring for community sentences that stops the bill being truly effective.
Of course, we have to strike the right balance between securing community safety and honouring offenders’ right to be rehabilitated. However, we are surely all agreed that, where serious crime is concerned, the safety of our communities is paramount—justice calls for that. Does it really serve our local areas to expand community sentencing? If we expand it, we widen the risk of reoffending. Offenders justly deserve a punishment that fits their crime.
Humza Yousaf
I do not say this lightly, but I find Maurice Corry’s contribution derisory, frankly. Will he not accept that all the research points to the fact that community alternatives are much more effective in reducing reoffending? If that is the case, does that not mean fewer victims of crime? What Maurice Corry is saying is completely counterproductive for victims.
Maurice Corry
At the moment, one in three community sentences is never completed.
Humza Yousaf
How many go back to prison?
Maurice Corry
Obviously, some do—I do not have the exact figures.
The Deputy Presiding Officer
Excuse me. This is not a private conversation. Mr Corry, are you willing to take another intervention?
Maurice Corry
Yes.
Humza Yousaf
Does Maurice Corry not understand that, because more people go back to prison after a short prison sentence than end up failing to complete a community payback order, by his logic, short prison sentences should be abolished? He should vote for that later.
Maurice Corry
No. I do not agree with the cabinet secretary, because there are two different types of prisoner: those who are very difficult to rehabilitate and those who have been to prison once and then see the light. On my visits to several prisons in Scotland, I have seen that people are trying to get rehabilitated—even in prison—but we must be careful that we do not have a one-size-fits-all approach. That is the point that I am making. The bill proposes an increase in the use of fines and community sentences that do not go far enough towards ensuring public safety.
I will not deny that the bill makes some worthy proposals. For instance, part 2, which focuses on the disclosure of convictions, is certainly a step in the right direction. It aims to reduce the period in which people, after serving their time, must disclose convictions. Currently, when someone applies for new work or further education, convictions must be disclosed according to the timetable that is set by the Rehabilitation of Offenders Act 1974. Of course, having to disclose spent convictions for a long period afterwards can negatively hamper people’s opportunities to move on from past offences. The change will allow reformed offenders to move forward, and it will encourage them to reintegrate into and contribute to society. I do not question that part of the bill.
However, I do question the bill’s purpose of ensuring that more community sentences are handed out that may, ultimately, fail to be impactful. For example, we know that a third of community sentences are not completed. Indeed, the completion rate of community payback orders has remained virtually unchanged for the past three years. With that in mind, I am not convinced that the bill will enable a just outcome.
Of course, it is right to explore alternatives to prison. A blanket prison punishment for every person and every crime would not be right, but the alternatives are effective only when they are appropriate and allow proper justice for victims. Perhaps it would be more worth while to focus on improving electronic monitoring and making it as effective as it can be. For instance, police officers should be given powers to respond more quickly to breaches of electronic monitoring. Moreover, if risk assessments were permitted to include greater victim information for criminal justice social workers, that would allow more insightful and appropriate decisions to be made on a firm basis. In that regard, I refer to the comment that I made to the cabinet secretary in relation to different types of prisoners.
For me, the main concern is the bill’s lack of a uniform response to the removal of an electronic tag. Indeed, an offender can cut off or tamper with an electronic tag and the bill fails to make it an automatic criminal offence for them to do so. Such an action can have catastrophic results, as we saw in the case of the murder of Craig McClelland by James Wright. Although such cases have rightly informed amendments to the bill, that example also confronts us with the risk involved in encouraging the expansion of community sentencing.
I recognise that the breaching of sexual offence or sexual harm prevention orders is, rightly, seen as an offence. However, a breach of other types of orders, including drug treatment and testing orders, restriction of liberty orders and community payback orders, will still not amount to an offence. Surely, every community order and licence condition should stipulate that removing a tag is an immediate criminal offence. As my colleague Liam Kerr pointed out, Victim Support Scotland has highlighted that, to keep victims safe, we must respond strongly and clearly to any breaches of electronic monitoring. That is the only way for it to be truly effective for our communities and for victims.
The Deputy Presiding Officer
Can you draw to a close, please, Mr Corry?
Maurice Corry
As I have said in the chamber before, the bill seeks to reform offenders but, in doing so, it overlooks the needs of victims. Victims deserve a fair and just outcome that places community safety at the very forefront of daily life.
18:31James Kelly (Glasgow) (Lab)
As someone who is not member of the Justice Committee, I pay tribute to the committee for its due consideration of the bill. I am well aware of how much work went into it, and we can tell, from how members of the committee are speaking today, how seriously they took that job.
There are two main strands to the bill that is before us today: the consideration of public safety in relation to people being released with tags, and the associated electronic monitoring and—importantly—rehabilitation. It is important that the public feel confident about their safety and that they can have confidence in part 1, which discusses the extension of electronic monitoring. There have been some big steps forward in technology in recent years, particularly in relation to GPS. That progress allows those who have been released under electronic tagging conditions to be properly monitored to ensure that their tag remains in place and minimises the chances of their breaching those conditions. It is also important that there is proper multi-agency work to back that up. Some budget issues need to be addressed in relation to that. Third sector organisations need proper budget support, as does the funding of electronic monitoring.
It is disappointing that the amendments in the name of Neil Bibby, which related to the tragic case of Craig McClelland, were not agreed to. I pay tribute to Neil Bibby for his work on those amendments not only today but throughout the bill process. If someone commits a murder in the prison system or the care system, there is a fatal accident inquiry; it therefore seems logical that, if someone who is on an electronic tag commits a murder, there should also be a fatal accident inquiry. It would have been better to place that on the face of the bill.
As Mary Fee and John Finnie have said, rehabilitation is key to reducing reoffending and reducing the pressure on prisons. Sadly, when they leave prison, too many prisoners are released out on to the street without adequate support. Groups such as the Wise Group carry out a lot of really important work in that area, and we should be doing more to support such work.
As other members have said, for people to successfully go back out into the community, they need a bit of stability in their lives. They need support with housing—they should not to be put in a situation in which they might be homeless. To deal with health issues, they need access to a GP, and they need support to get into employment. Those three factors would give important stability, which would help them not to reoffend and return to prison.
As we go forward, it is important that there is a sufficient level of expertise in the Parole Board for Scotland. The measures in the bill partly address that, but there will be other issues to consider.
At the stage 3 vote, Scottish Labour will support the bill. However, in order to meet its objectives successfully, it is important that we follow it through by funding multi-agency work and supporting key activity around stability for prisoners to reduce reoffending.
18:35Jenny Gilruth (Mid Fife and Glenrothes) (SNP)
I thank the Justice Committee clerks, our witnesses and my fellow MSPs for all their work to get us to stage 3 today.
The bill is, of course, part of the bigger jigsaw of Scotland’s justice reforms. Section 4 of the policy memorandum makes it clear that
“The Management of Offenders (Scotland) Bill brings forward a number of reforms designed to deliver on the Scottish Government’s commitment to continue to transform the way in which Scotland deals with offenders”.
For any Government, there is a careful balancing act between protecting victims and ensuring that the justice system focuses on rehabilitation and prevention.
As we have heard, one of the key measures in the bill is the introduction of GPS technology to improve the use of electronic monitoring. Section 6 of the policy memorandum states:
“The expansion of electronic monitoring supports the broader community justice policies of preventing and reducing reoffending by increasing the options available to manage and monitor offenders in the community, and to further protect public safety.”
As Scottish Women’s Aid told the committee:
“Electronic monitoring and particularly use of GPS technologies may help to ensure that perpetrators of domestic abuse serving sentences in the community, released on bail, or on Home Detention Curfew, adhere to the terms and restrictions imposed, thereby improving protection of women, children and young people who have experienced domestic abuse.”
Nonetheless, Scottish Women’s Aid was keen to highlight that GPS does not detect all forms of domestic abuse—as legislated for by this Parliament last year—including manipulation via text messages and social media communication. Therefore, electronic monitoring is not for all offenders, and the “National Strategy for Community Justice” makes it clear that
“Alternatives to prison will not be appropriate for some people.”
Liam Kerr
Jenny Gilruth is making important points. Does she also agree with Scottish Women’s Aid that, in order to make sure that the scenarios that she has outlined can be prevented, we need much harder sanctions if someone cuts off their tag?
Jenny Gilruth
I thank Liam Kerr for that intervention. Throughout today’s consideration of amendments, we have heard similar points from him, but I am not convinced by them. Scottish Women’s Aid also made points about the fear that women victims might feel if, for example, the offender was out with a tag and they were able to see the offender moving around. That could increase their anxiety. There are a number of issues that the committee took into consideration throughout the deliberations, and we are now at stage 3, so I will move on and make progress. Nevertheless, I take Liam Kerr’s point.
Part 2 introduces a fundamental reform of the Rehabilitation of Offenders Act 1974. Its focus is on ensuring that there is a balance between people’s right not to disclose previous offending behaviour and the need for general public protection. In its written submission, Nacro told the Justice Committee:
“Criminal record disclosure is one of the main barriers that people with criminal records face when trying to secure employment. Our experience indicates that this is largely due to employer perceptions and misunderstandings, often based on false assumptions around perceived risk to an organisation’s security and harm prevention, as well as a belief that people with criminal records lack personal attributes such as honesty and reliability.”
As John Finnie alluded, expanding the use of electronic monitoring—where appropriate—should also be considered in relation to Scotland’s imprisonment rate. As Dr Sarah Armstrong from the Scottish centre for crime and justice research told the Justice Committee a couple of weeks ago, when it comes to how many people we lock up, if Scotland were a US state, we would be on a par with Texas or Louisiana. Dr Armstrong described the “paradox” in the fact that Scotland, as
“a country that is so committed to social welfare investment makes huge use of such an incredibly expensive resource as prison.”—[Official Report, Justice Committee, 4 June 2019; col 24.]
Liam Kerr spoke about costs, and I want to talk about costs, too. Dr Hannah Graham has pointed out that the average cost per prisoner place is £35,325 per year. In contrast, the average cost per community payback order is £1,771 a year, and electronic monitoring—or tagging, as it is known—costs just £965 per year. That is a fraction of the cost of keeping a prisoner in a country that, shamefully, has one of the highest prison rates in western Europe.
Nevertheless, investing in alternatives to prisons should not just be about cost, as Liam Kerr implied. We must measure the impact of the dispensations that sheriffs have at their disposal. Indeed, as Mr Kerr’s colleague David Gauke, the UK justice secretary, said recently, we need to move to a more imaginative approach to crime and punishment, with a focus on rehabilitation in the community. We must therefore have a range of different and robust alternatives to incarceration that allow the justice system to interrupt the cycle of criminality without consistently relying on prison as a fallback option.
I notice that I am well over my time, so I will conclude there.
The Deputy Presiding Officer
We have a little bit of time in hand, so I can allow you up to six minutes, Mr Johnson.
18:40Daniel Johnson (Edinburgh Southern) (Lab)
Why, thank you, Presiding Officer.
This has been something of a marathon. I acknowledge the bill team, which is sitting at the back of the chamber; it has been through quite a long process, but that has been necessary, given the circumstances.
I will begin my concluding remarks by talking about the key benefits of the bill. James Kelly set those out quite well. New technology brings with it new possibilities of doing things more effectively and providing new possibilities around monitoring individuals. The fact that we cannot use GPS for electronic tagging speaks to the need for this bill.
The committee took evidence from Karyn McCluskey and others about the possibilities of electronic tags that can monitor levels of alcohol or other substances in the bloodstream, and it is clear that they would have benefits over the old-fashioned radio tags that are currently used. They would provide for more effective community payback orders and more effective monitoring of those who we choose to release from prison.
The provisions around disclosure are important. We need to ensure that we make it easier rather than harder for people to reintegrate into society.
The modest changes to the Parole Board are welcome because they are not overly prescriptive about those who go through it. I truly welcome the addition of the test that has been included at stage 3. It is important that our justice system is transparent. If people do not understand how our justice system works, how can we expect them to trust it? By publishing explicitly a set of tests, we can ensure that we have the level of transparency we need about parole. After all, we are entrusting the Parole Board with incredibly difficult and important decisions.
Ultimately, as we decide how to vote on the bill this evening, we need to consider the circumstances around Craig McClelland’s murder. They were tragic and they showed deficiencies in the regime as it stood at the time. I conceded at stage 1 that there were deficiencies in the evidence that the committee took. I am not sure that we asked the right questions about what happens when people breach. Were the powers sufficient as they stood? Those questions were asked subsequent to that event, and they were the right questions. Indeed, I believe that the implementation of a new offence will help to put in place the robust measures that are required so that we can apprehend someone when they breach.
The guidance on risk improves matters. The risk assessment was simply not robust enough, as the prisons inspector said. The future risk management work promised by the cabinet secretary and the Risk Management Authority will enhance that.
That is not to say that the bill is without shortcomings. I regret that we did not pass the amendments on fatal accident inquiries. It is right that we investigate the failures that have occurred when there is a death in custody, and Neil Bibby’s point was that essentially the same principle should apply to a slightly different context. When a death occurs when someone is released on tag, we need to ask the same questions, and they can really only be asked in a fatal accident inquiry.
There is also work to be done around inter-agency working. The most major deficiencies in the Craig McClelland case arose in information being passed between the SPS and the police. We need to do an awful lot more work to ensure that that cannot happen again. It is astonishing that some issues that were raised were the result of simple things such as the police not communicating what email addresses they were using. We need to bottom out why that happened.
We should have made cutting off a tag an offence. The tag is the means by which we monitor people for good reason. The act of tampering with or removing the means of being monitored is serious and should automatically allow the police to apprehend someone.
I caution my Conservative colleagues across the chamber. I agree with what Liam McArthur said about Liam Kerr’s remarks. There is not just a degree of but a substantial amount of dog-whistle politics going on.
The bill will not widen the scope of community justice provisions; it will not create new sentences or disposals. Arguments that the Conservatives made might well apply to the presumption against short sentences—although I disagree with them—but the place for that debate is when the presumption is considered and not in relation to the bill. By making those arguments in relation to the bill, the Conservatives deliberately misconstrued and misrepresented the bill. That is dangerously irresponsible.
The arguments against the presumption fly in the face of evidence and of what the Conservatives’ colleagues in the UK Parliament and the UK Government are saying. I make one simple suggestion to my Conservative colleagues—that they take a walk with Rory.
The bill is something of a missed opportunity. The provisions are useful, but the bill more properly should have looked at what happens after we release prisoners. How do we ensure that their reintroduction to society is more successful? What do they need for that to succeed? Mary Fee was right in her opening remarks.
I recognise that my stage 2 and stage 3 amendments on GPs, on proof of identity and address and on housing might not have been as well developed as they needed to be, but we must examine such issues in future legislation. The bill has missed the opportunity of looking more holistically at how we ensure that, after people are released from prison, they are successful—judged by the fact that they do not reoffend, that they have meaningful and gainful employment and that they are not released into homelessness.
I say to the cabinet secretary that we need more debates. It is incumbent on the Government to make time for debates to discuss the big issues about the purpose of the justice system and of prison and about how we ensure that people succeed when they are released from prison. In closing the debate for Labour, I make that plea to the cabinet secretary.
18:47Margaret Mitchell (Central Scotland) (Con)
I thank all the witnesses who gave evidence and I thank the Justice Committee clerks and members for all their hard work on the bill.
I, too, consider the bill to be an opportunity lost, but for different reasons from those that Daniel Johnson gave. The bill’s long title refers to offenders, which meant that the use of electronic monitoring could not be expanded to include interim disposals, such as bail, which are used before a person has been convicted of an offence. Tragically, that means that remand prisoners—the group of individuals in the criminal justice system who most need and should benefit from the expansion of electronic monitoring—cannot be included in the measures.
If the bill extended electronic monitoring to remand prisoners, it would have cross-party support and would be passed unanimously this evening. The cabinet secretary might not be prepared to acknowledge this, but—sadly—the stage 2 amendments that he tried to lodge and which were ruled inadmissible because the bill is about post-conviction monitoring confirmed the position.
The bill is in three main parts. Part 2 reduces the length of time for which people must disclose convictions after serving sentences. It also extends the range of sentences that can become spent. That part had the entire Justice Committee’s support.
Part 3 makes reforms to the Parole Board for Scotland and seeks to remove the requirement for the Parole Board to include a High Court judge and a psychiatrist. There was considerable debate about that provision. In particular, it seems bizarre in the extreme that after the committee had concluded its stage 1 report, the Scottish Government launched a wide-ranging consultation on parole.
However, it is part 1, which covers electronic monitoring and expands and streamlines its use, that contains by far the most worrying and contentious provisions in this area, in relation to which the committee is divided. In particular, the provisions will make it possible to replace some jail sentences. According to the former Cabinet Secretary for Justice, electronic monitoring could be used for individuals who are being considered for a short-term prison sentence. That could, and probably will, include those convicted of domestic abuse. Various stage 3 amendments have, therefore, sought to address breach of electronic monitoring obligations. In terms of response times to breaches, Victim Support Scotland said:
“It takes too long for someone to be found in breach”.
At stage 2 and again at stage 3, I lodged amendments that called for an immediate or an as-soon-as-possible response by Police Scotland. My amendments sought to ensure that there is an effective response, crucially, when deemed necessary. It is disappointing that the amendments were not agreed to.
Robust risk assessments are crucial. Home detention curfews allow prisoners to spend up to a quarter of their sentence in the community wearing an electronic tag. The curfew condition requires criminals to remain at a particular place for a set period each day. However, James Wright was able to breach his home detention curfew conditions and stab to death father-of-three Craig McClelland despite being unlawfully at large for almost six months.
The Scottish Conservatives, Labour and the Liberal Democrats have all called for an independent inquiry into Craig McClelland’s death, and Neil Bibby did so effectively today, with regard to his amendment 140. Without that provision, nobody can be totally confident that the solutions that are proposed will be adequate. It is, therefore, regrettable that the Scottish Government has refused a full independent inquiry.
Finally, the Wise Group has stressed that unless the extension of electronic monitoring is sufficiently resourced, offenders are being set up to fail. In response, the Justice Committee called on the Scottish Government to provide adequate budgets and said that electronic monitoring should be used only after a comprehensive assessment of risk, particularly for those individuals who would otherwise have been incarcerated.
As neither of those conditions has been adequately fulfilled, the Scottish Conservatives will be voting against the bill this evening.
18:53Humza Yousaf
I thank members across the chamber—most of them, at least—for their contributions to the debate, and I extend my thanks to everyone who has been part of scrutinising and shaping the bill during its passage through Parliament. I also thank the Scottish Government bill team and their colleagues in the Scottish Government for all their work in drafting the bill. They are an excellent team who have worked with a couple of cabinet secretaries to get this bill into the good shape that it is in today. I also pay tribute to my predecessor, Michael Matheson, for all the hard work that he did on the bill at its introduction.
I was not planning to spend much time on the contributions of the Conservatives, but I cannot let their, frankly, naked opportunism go. I find it incredible that such often intelligent people could make such asinine and derisory remarks during the debate.
Liam McArthur called it dog-whistle politics and grandstanding politics, and he was right, but I have to say that the Opposition is as predictable as it is—to be frank—tiresome, because we know that it is just playing to its gallery. We know the pattern. I would bet my mortgage on it that there will be a press release from Liam Kerr and the Conservatives tonight or tomorrow littered with the phrase “soft justice”. That will be picked up by his friends at the Daily Mail and the Daily Express. He will play to his gallery, but not successfully, because the majority of Scots feel safe.
I say to the Conservatives, and particularly to Liam Kerr, that I have a great amount of time for him but he is quickly losing credibility on the issue. The research and the data demonstrate clearly that progressive justice reforms such as the ones that we are discussing today and the ones that we will vote on tomorrow are going to reduce reoffending. That means fewer crimes and fewer victims.
Whenever progressive reforms are brought to the chamber, Liam Kerr and the Conservatives fail time and time again. They present a false picture that there is a binary choice to be made, of victims versus those who have committed crimes. That is simply not the case. It is very possible to be on the side of victims—as we are, and as every member of this Parliament is—and also to want to improve the rehabilitation chances of those who have committed crimes. It is not a binary choice.
Liam Kerr
Is it the cabinet secretary’s position that having a proper risk assessment tool and sanctions for cutting off a tag are merely dog-whistle politics and a binary choice?
Humza Yousaf
The member has used several policy positions and several hooks to do what he was always going to do when the bill was introduced and vote against it. He was always going to vote against the bill because it simply does not play to the gallery that he wishes to play to.
It does not just diminish the Conservatives to present that false choice of victims versus the rehabilitation of those who commit crimes. It is, frankly, an insult to all of Liam Kerr’s colleagues across the Parliament who believe that if we improve the chances of rehabilitation of offenders, we reduce reoffending and, as a result, have fewer victims of crime.
Let us consider some of the points that were made. Maurice Corry said that he could not support the bill because of the rates of community payback order completion, and he talked about imprisonment as an alternative. The fact is that the reconviction rates for those on short sentences are nearly twice as high as the rates for those who are given a CPO. That is an argument for further community alternatives and not a reason to back more punitive short prison sentences.
I am disappointed but not surprised by the dog-whistle politics—as Liam McArthur called it—of the Conservatives. I make a plea to them, as Daniel Johnson did, that they should “take a walk with Rory”, as he described it. They should speak to their colleagues in the UK Government such as David Gauke, whom I have a lot of time for, and the many others who have looked towards Scotland and said that there is much that they can learn from our policies on the rehabilitation of those who commit crimes.
I turn to some of the other contributions that were made by members across the chamber. I thank Mary Fee for what was a very thoughtful speech. I want to reassure her on the questions that she asked the Government about further spend on community alternatives. We have stepped up to that challenge in the spending review. If I can throw back a challenge, I say to her that, come the next spending review, it would be helpful if Labour came to the Cabinet Secretary for Finance, Economy and Fair Work with proposals and said, “This is where we want some of that money to be spent.” Let us enter a productive dialogue in that regard.
We also heard excellent speeches from John Finnie, Rona Mackay and Jenny Gilruth. I give Daniel Johnson a special mention. I see that he has gone all al fresco since he left the front bench—his tie is off and he looks more relaxed. Regardless of whether he is on the front bench or the back benches, he made a very considered speech. It was an excellent speech, actually, and one that I think the Conservatives and others outside the Parliament would do well to listen to. I take his point about the Government reflecting on the potential need to bring forward further debates on other issues that affect prisoners, such as support for housing and GP services and other throughcare support.
Once again, I am very proud to be moving the motion on the bill at stage 3. It is part of a wider package of progressive justice reforms that this Government has introduced. At the heart of those reforms is our absolute belief that people are capable of change. We believe that people who have committed crimes can transform their lives, be productive members of society, contribute back to society and change their lives for the better. We will vote tomorrow on the presumption against short sentences of 12 months—the Presumption Against Short Periods of Imprisonment (Scotland) Order 2019—which, with today’s bill, is part of a suite of measures that we will introduce. They say that we are absolutely on the side of victims and will continue to improve their justice journey, throughout the criminal justice system, but hand in hand with that goes the belief that people can change and that rehabilitation is paramount. With that, I am delighted to commend the bill to the Parliament.
25 June 2019
Final vote on the Bill
After the final discussion of the Bill, MSPs vote on whether they think it should become law.
Final vote transcript
The Presiding Officer (Ken Macintosh)
There is one question to be put as a result of today’s business. The question is, that motion S5M-17893, in the name of Humza Yousaf, on the Management of Offenders (Scotland) Bill, be agreed to. As the motion is on passing a bill, there will be a division.
For
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)
Against
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
The Presiding Officer
The result of the division is: For 82, Against 26, Abstentions 0.
The Management of Offenders (Scotland) Bill is therefore passed. [Applause.]
Motion agreed to,
That the Parliament agrees that the Management of Offenders (Scotland) Bill be passed.
25 June 2019