Official Report 481KB pdf
Antisocial Behaviour (Fixed Penalty Offences) (Miscellaneous Amendment) (Scotland) Order 2026 [Draft]
Our next item of business is an oral evidence-taking session on an affirmative Scottish statutory instrument that has been relaid by the Scottish Government. We are joined by the Minister for Victims and Community Safety. I also welcome Robert Wyllie, policy lead in the safer communities division, and Fiona McDiarmid, unit head in the safer communities directorate, both at the Scottish Government. I refer members to paper 3. I intend to allow up to around 15 minutes for this item.
I invite the minister to make some opening remarks on the SSI and perhaps to set out the reasons for its being relaid.
Good morning. First, I want to take the time to apologise to the committee for the circumstances that bring me back here today. I appreciate that time is of the essence considering where we are in the parliamentary session, so I apologise for that.
As the committee knows, the instrument relates to antisocial behaviour fixed-penalty notices. That regime has remained unchanged in important respects—the penalty level, for example—since it was introduced back in 2005. Police Scotland approached the Scottish Government to ask for work to be undertaken to modernise the regime, and in particular to introduce the offence of threatening and abusive behaviour.
We introduced the original draft order following discussions with partners including Police Scotland and the Crown Office. Its purpose, as you know, was to make a series of targeted changes to keep the regime up to date. As part of the policy development work, Government officials reviewed the offence list and proposed removing two offences from the regime on the basis of apparent non-usage. Although Police Scotland supported the proposal, we have now identified that the understanding that we all had of recent usage data for one of those offences was incomplete.
The earlier conclusion was informed by an interpretation of the criminal proceedings in Scotland data that did not fully reflect the way in which such offences are categorised in the published statistics. Forty-three equivalent notices for an offence under section 115 of the Licensing (Scotland) Act 2005 were issued in the most recent reporting year, with a similar volume recorded in the preceding year. In the published statistics, such FPNs are classified alongside other 2005 act offences.
I apologise to the committee for the error. Officials have reviewed how it arose, and clear lessons have been identified to mitigate the risk of its happening in future. Officials have also discussed the corrected position with Police Scotland, and I can reassure the committee that the police considered that, even if we had proceeded with the original proposal, they would still have had been able to deal effectively with the types of cases that they encounter of disorderly behaviour by people who are drunk on licensed premises.
However, I acknowledge the concerns that members raised in the previous evidence session about removing offences based on a relatively short period of apparent non-use. I appreciate that those points were legitimate and I have reflected on them. After considering the complete time-series data and the committee’s remarks, I am bringing forward a different legislative approach through this revised instrument, which will allow us to make progress in the areas where there is strong evidence and broad support while at the same time pausing the proposed removal of offences so that they can be considered as part of the wider review of antisocial behaviour legislation that we discussed previously.
The revised instrument focuses on two amendments. First, it increases the FPN level from £40 to £70, restoring its real-terms value. Secondly, it adds offences under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 to the ASB FPN regime. That section is now routinely used for lower-level conduct and is already eligible for recorded police warnings.
I emphasise that the ASB FPN regime is operated by the police, using their discretion within a clear framework of safeguards. The Lord Advocate’s guidelines on direct measures set out the limits on the use of ASB FPNs, require consideration of victim impact, and provide for monitoring and annual reporting.
I hope that the revised approach demonstrates that we have listened carefully to the committee and have responded proportionately, under the circumstances. I apologise again for the need to come back to the committee, and I thank members for their patience.
Thank you, minister. The committee is grateful for the update that you have provided, for the explanation that you have given and for some of the detail on the provisions in the SSI.
I now invite questions from members.
Good morning, minister, and thank you for the opening statement.
You were previously before us on 18 February. As you said, some of the figures in the SSI were incorrect. How, then, did it come to the committee in that form? It had already been considered by the Delegated Powers and Law Reform Committee before coming to us. Our committee asked its questions; we took what we heard on trust and recommended that the SSI be approved. The next step was for it to go before Parliament for agreement, after which it would have become legislation. Who prepared the SSI, and why were the figures not verified before it went to the DPLR Committee and then to ours?
We wanted to reform this part of the fixed-penalty notice regime, which is why the SSI was laid. Obviously, there has been a mistake in the data that was collected. Bob Wyllie, who was in charge of drafting the SSI, can say more about how the statistics were incorrect.
As the minister described, Police Scotland came to us with a request to add section 38 of the 2010 act to the fixed-penalty notice regime. We then engaged in discussion with Police Scotland, the Crown Office and Procurator Fiscal Service and the British Transport Police to try to understand their needs. We looked at data as part of that and commissioned economists to look at what the right penalty level was. We perceived there to be two offences for which no FPNs were used in the previous financial reporting year.
As part of the purpose of the instrument was to bring the area into line with current practice, we considered it appropriate to remove those offences. We reached out to partners for their views, and Police Scotland and others responded to say that they were supportive. That was the basis on which the instrument was presented.
However, as the minister has outlined, there was an error in the interpretation of those statistics. Going forward, it is effectively impossible for that to happen again, because further changes to the FPN regime will involve much bigger potential changes, such as gradations of the penalty level or the introduction of new offences relating to issues such as fraud or trespass on the railway, which has been suggested by a group that has recently reported to ministers. All of that will need a different process involving economists’ input and, potentially, public consultation. That was not the case with this instrument, as it was designed to bring the system into line with current practice as much as possible. That was the basis on which the error was made.
For clarity, I note that my understanding is that the mistake arose because of the way in which officials interpreted the data, which does not fully reflect these offences, in the categories in published statistics. I know that this is quite confusing, but the heading “Riotous behaviour while drunk in licensed premises” covers only offences under the Licensing (Scotland) Act 1976. There is an equivalent offence in section 115 of the Licensing (Scotland) Act 2005, but that comes under a different heading in the data structure, which concerns refusing to leave licensed premises. The 43 ASB FPNs issued last year were issued under section 115 of the 2005 act and were not included under the old data heading. That is where some confusion has arisen. However, that has been picked up and measures have been put in place to ensure that that never happens again. The issue involved offences being categorised in different areas.
The increase in the fine was not an issue at committee last week—I think that we all agreed on that. Similarly, adding in the extra offence was not an issue, either. However, there was concern about the process around removing two offences.
Robert Wyllie said that there was engagement with the Crown Office and Procurator Fiscal Service and Police Scotland, and I think that he mentioned that there was also engagement with economists and the British Transport Police as well. Who was it that asked for the offences to be removed? Again, there were only two years in which the FPNs had not been used, which, in relation to legislation, is quite a short period: we often pass legislation in here that does not even get implemented within two years. Who decided that we were going to remove the offences, and why did nobody question it? You said that “we perceived” that the offences did not need to be included, but who was “we”? You said that you reached out to various people. Did you have any in-person meetings, or did you just send emails?
I will have to bring in officials to answer that, because my understanding from my meeting with officials before we came into the committee is that the SSI was updating the position, because, for the past two years, it was deemed that there had not been any relevant offences, and, in liaison with Police Scotland, no one had brought that up as an issue. That is why the issue arose. It was only after this committee had looked into the matter that it was found that relevant offences had been placed in a different category. That is why I am back here today, listening to the committee, to ensure that it is only the increase in fees that is now added. When we move forward in the next parliamentary session with legislation and broader work on antisocial behaviour and fixed-penalty notices, the issues will be addressed at that stage.
10:45
I am still looking for an answer. The information that was given to you was obtained by officials in meetings. You have taken it as fact. Despite having the Crown Office and Procurator Fiscal Service, Police Scotland, the British Transport Police, economists and Government officials look at the matter, you have presented the committee with incorrect information, and you want us to change the legislation. When we come to committee, we expect the information that we are given to be factually accurate. Will an investigation be carried out into how we were given incorrect information to present to Parliament?
I do not know whether Bob Wyllie or Fiona McDiarmid wants to come in.
The proposal to remove offences was suggested by Government officials. That is the answer to your previous question.
On the basis that they had not been used for two years.
Yes, that is right. The question was asked, “Is this in line with current practice? Are these offences needed at the moment?” We proposed that they be removed to align with current practice. That seemed like a sensible measure in a context in which we were adding offences under section 38 of the 2010 act to the fixed-penalty notice regime.
In answer to your question about an investigation, quite intensive investigations have been carried out, at policy level and with statisticians, to establish what we can do to make sure that this does not happen again. As I have indicated, the future policy work on the antisocial behaviour fixed-penalty notice regime will be done in a very different way, so it will not be possible for this to happen again.
In addition, statisticians are looking at the way in which information on ASB FPNs will be presented in the future in the criminal proceedings in Scotland statistics, so that we can learn from what has happened.
Investigations have been undertaken in an attempt to get to the bottom of what has happened and to make sure that it does not happen again. Given the guardrails that are now in place for future work, we can give an assurance that we will not find ourselves in this situation again.
I have been the Minister for Victims and Community Safety for close to three years and this has never happened before, so it is not something that happens all the time.
Not that we are aware of. I hope that there will be no more similar instances.
On 18 February, we were told that Police Scotland did not want the offence of being drunk in charge of a child to be removed from the ASB FPN regime. Why did you proceed with the process of taking it out of that regime?
I am sorry—what did you say?
You told us that Police Scotland did not want the offence of being drunk in charge of a child to be removed from the ASB FPN regime—that is in the Official Report of our meeting on 18 February—so why did you proceed with removing it from that regime through the SSI?
I cannot remember Police Scotland saying that—those remarks might have been misinterpreted.
Is that question relevant to the instrument that we are dealing with today?
The minister told the committee:
“When we engaged with the police on the instrument, it was not an issue that they raised, but they wanted that offence kept on the list.”—[Official Report, Criminal Justice Committee, 18 February 2026; c 7.]
I think that that is a misunderstanding. Police Scotland are quite clear that being drunk in charge of a child is not an offence in relation to which it would look for an ASB FPN to be issued.
Quite a number of cases involving that offence went to court—I saw that in the updated figures.
What has happened is unfortunate, but I am inclined to recognise that it is unusual. I know from my own experience that things can go wrong, but it does not happen often.
When we recommended that the previous instrument be approved, we were reassured by the fact that the various offences that were being removed could still be prosecuted under common law and other legislation, but it would be useful to understand what will happen in future.
You have brought forward the SSI, and we all accept that it rectifies the particular problem. You have recognised the problem and let the committee know about it, which we all appreciate. The new SSI deals with the problem, which is welcome, but it would be useful to understand what will happen in future. The first question might be whether it would be better and safer to operate a presumption against removing offences, rather than looking at it the other way round and asking what we should remove. We should be reassured that an equivalent offence has superseded it and I understand that is what is happening.
I do not want to go into a lot of detail right now, minister, but maybe you could put it in writing that you are clear that this will not happen again because processes have changed. Mr Wyllie used the word “guardrails”. We can get some sense of what that might mean, but I would be reassured if we could get a bit more information about what steps and measures have been taken to use this as a learning experience to make sure that it will not happen again.
The first part of the question is about what will happen moving forward. I cannot speak on behalf of the Government in the next parliamentary session, but we know that there will be antisocial behaviour legislation, and we have the report on the review of antisocial behaviour.
A lot of work should be done in the next parliamentary session on antisocial behaviour and maybe there also should be an overhaul of fixed-penalty notices. The presumption about the current notices can definitely be considered, because lessons have to be learned from what has happened here. I do not want to be here, in this position, today, but I have been reassured by officials that lessons have been learned. I would be happy for officials to write to the committee to explain what procedures and safeguards have been put in place to ensure that this never happens again.
I am not looking for massive detail, but can we get some sense of what that looks like at this stage and then maybe you can follow up with a bit more detail in writing? Is there a wee bit more information that we can find out just now?
Robert, do you want to speak about what safeguards are in place to ensure that this does not happen again?
I can speak about the broader review that this work is going to be folded into. Officials are undertaking site visits with local authorities and community policing teams to understand how all the powers in the Antisocial Behaviour etc (Scotland) Act 2004 are being used in practice and what works and what does not for the people who are on the ground using them on a day-to-day basis.
On fixed-penalty notices specifically, there will shortly be an initiation meeting to make sure that broader work on changes to the regime has analytical input from the beginning. We have a whole series of big issues of principle that need to be addressed about the regime, including graded penalty levels and the suggestion about the addition of low-level ticket fraud.
There has been no suggestion of removing any offences. If I can offer any further assurance, we will not be looking to return to the question of removing offences from the regime on our own behalf.
Will the Scottish Government’s legal directorate be more involved? It sounds to me as though the issue is that there has not been enough cross-reference to different forms of legislation.
I note that some of the other proposals for reform to the regime are going to be more complex and will involve questions of principle and different penalty levels. What we have in place changes the statistical and policy side that directly address the cause of this error. The statisticians are reviewing similar clarifications across the bulletins, and policy processes are now included that strengthen verification and cross-checking. With the safeguards that have been put in place since we have been alerted to this, the specific circumstance that led to this mistake should not recur.
Cross-checking of different items of legislation is—
Yes, that is what I am being told.
The instrument that we have before us today simply adds an offence where a fixed-penalty notice could be issued, as I understand it, and also increases the levels of fines. I would be minded to support that today.
On the wider issue, including the history and the broader review that has been referred to, many of us were concerned, as has been said, that officials were looking for offences to abolish. The general position is that it is usually helpful to have a range of available offences so that the police and prosecution services have options. It would be helpful if it could be fed back that some of us, at least, do not necessarily expect proposals for abolishing offences.
However, I take on board the wish to review whether the legislative framework works and delivers on the policy objectives. I do not have any questions—I just wanted to put that on the record, so that the minister knows that at least some of us hold that position and that, were the matter to come forward in the next session of Parliament, it might be that others make those points. I hope that that is helpful.
The proposals that are in front of us seem to me to be perfectly acceptable. I am pleased that we have ended up here and that the minister has brought all this information to the committee.
I see that no other members wish to come in. Our next item of business is to consider a motion to approve the affirmative SSI on which we have just taken oral evidence. I remind officials—not that you need reminding—that only MSPs can speak in a debate on a motion.
I invite the minister to move motion S6M-20475, in her name, and to make any brief additional comments that she wishes to make.
I have no further comments.
Motion moved,
That the Criminal Justice Committee recommends that the Antisocial Behaviour (Fixed Penalty Offences) (Miscellaneous Amendment) (Scotland) Order 2026 [draft] be approved—[Siobhian Brown].
Do any members wish to come in with any final comments?
I will support the SSI, but I should probably return to a point that I raised previously. At our 18 February meeting, I mentioned the possible impacts of raising the fine level. Although I agree with doing so, we must monitor non-payments. The figures that were sent to us show that there were 2,903 non-payments in the previous three years. If we take off the 501 non‑payments that relate to the coronavirus pandemic, that still leaves us with 2,402 non-payments, which shows an increasing trend of fines not being paid. With that increase in mind, I want to ensure that the Government monitors unpaid fines to identify whether the measures have an impact.
I reiterate that, when we come to committee, we rely on the fact that the information that we are given is correct before we recommend that SSIs be approved. I hope that officials reflect on that and ensure that the information that they are passing to Government ministers is correct, so that we are not putting things into legislation that we should not be.
I invite the minister to wind up and press or withdraw the motion.
I press the motion.
Motion agreed to,
That the Criminal Justice Committee recommends that the Antisocial Behaviour (Fixed Penalty Offences) (Miscellaneous Amendment) (Scotland) Order 2026 [draft] be approved.
Are members content to delegate responsibility to me and the clerks to approve a short factual report to the Parliament on the affirmative instrument?
Members indicated agreement.
Thank you very much. The report will be published shortly.
As this is our last scheduled meeting, I thank the minister and her officials for all their contributions to the committee over the past five years—it is greatly appreciated.
That concludes our business in public. Before we move into private session, I take the opportunity to thank all the members of the committee—my colleagues, past and present—for their excellent work during this session of Parliament and for the very collegiate way in which they have approached the business before us.
I also extend our thanks to our wonderful team of clerks and our wider group of staff who have supported us, including the Scottish Parliament information centre, the official report, broadcasting, the participation and communities team, media teams, security, catering and anyone else whom I might have forgotten.
Finally, I thank all the witnesses who have given evidence to us over the past few years, particularly those for whom it has been challenging to come to talk to us about their experiences, some of which have been serious and traumatic. It has meant a great deal to the committee and has greatly contributed to our work.
For the very last time, before I start to cry, we move into private session—Fulton, I will bring you in first.
It is probably worth saying that you forgot one person to thank, convener, because it would be pretty difficult for you to do so. I am sure that I speak on behalf of all colleagues and clerks when I thank you for the brilliant way in which you have convened the committee over the past five years.
Thank you, Fulton. It has been an absolute pleasure. We now move into private session.
11:00
Meeting continued in private until 11:15.
Previous
Crime and Policing Bill