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Chamber and committees

Justice Committee

Meeting date: Tuesday, February 23, 2021

Agenda: Decision on Taking Business in Private, Legislative Consent Memorandums, Domestic Abuse (Protection) (Scotland) Bill: Stage 2, Subordinate Legislation, Justice Sub-Committee on Policing (Report Back), Legislative Consent Memorandums, Domestic Abuse (Protection) (Scotland) Bill: Stage 2, Subordinate Legislation


Subordinate Legislation

Criminal Justice (Scotland) Act 2003 (Supplemental Provisions) Order 2021 [Draft]

The Convener

We have two more public pieces of business to transact this morning, before we move into private to consider our last remaining item. Those two remaining pieces of public business are to consider two affirmative Scottish statutory instruments, the first of which is the draft Criminal Justice (Scotland) Act 2003 (Supplemental Provisions) Order 2021. I refer members to the relevant paper in our pack, which is a note by the clerk.

The Cabinet Secretary for Justice and his officials are still with us, and I invite the cabinet secretary to make a brief opening statement on the draft order.

Forgive me, convener: I lost you at what was probably the important point. Do you wish me to speak to the draft Criminal Justice (Scotland) Act 2003 (Supplemental Provisions) Order 2021 first?

Yes, please.

Humza Yousaf

I am happy to so. Thank you for inviting me to speak in support of the affirmative instrument. Victims of certain crimes are currently eligible to make a victim statement—a written statement that tells the court how a crime has affected the victim physically, emotionally and financially. The judge or sheriff takes the statement into account when it comes to sentencing.

The list of offences for which a statement can be made was prescribed in 2009. Since then, a number of new offences have been introduced—stalking, for example—for which a statement cannot be made. Statements are currently limited to solemn proceedings.

We consulted in 2019 on widening the scope of the current scheme to give more victims the opportunity to have their voices heard. The findings of that consultation make it clear that there is an appetite for change, such as widening the list of eligible offences and piloting new ways for victim statements to be made.

Section 14 of the Criminal Justice (Scotland) Act 2003 provides ministers with the power to prescribe the courts and offences where victim statements can be made, and indeed their form and manner. It does not provide that different provisions can be made under those powers for different purposes. That means that some of the options that were favoured in the consultation cannot be implemented. For example, statements could not apply to a combination of all solemn offences and a subset of summary cases. Furthermore, we cannot develop pilots to explore issues such as take-up by victims and the resource implications for the criminal justice system and third sector organisations.

The draft order will address that by allowing the powers relating to victim statements that are contained in the 2003 act to be used in a flexible manner in terms of which courts such statements may be made in and for which offences they will apply. If the draft order is approved, it will, once it comes into force, allow for further engagement with key partners on the detail of proposed changes to the scheme.

The consultation demonstrates that there is an interest in enabling all victims to make a statement; that would represent a significant change to the scheme. In its consultation response, Victim Support Scotland said that it would have to consider whether additional resources would be required to enable it to address an increase in demand from victims seeking help with completing their statement. It is therefore sensible for us to take a phased approach in widening the scope of the scheme, and to investigate issues such as the resource implications for victims’ organisations and, most importantly, the impact on victims themselves. The order will allow for that flexibility.

By supporting the order, the committee will ensure that powers relating to victim statements can be used in that flexible manner, and it will, ultimately, provide more victims with an opportunity to have their say.

The Convener

Cabinet secretary, can you explain why the Scottish Government is using the process that it appears to be using? I am not sure that I fully understand the technical implications of the issue, but the Delegated Powers and Law Reform Committee has drawn it to this committee’s attention.

What appears to be happening, unless I have misunderstood it, is that the Scottish ministers propose to engage in what the DPLR Committee described as

“an unusual or unexpected use of”

delegated powers

“conferred on ... Ministers”

by using a power in section 84 of the Criminal Justice (Scotland) Act 2003 to substitute provisions in section 14 of the same act, as amended by the Victims and Witnesses (Scotland) Act 2014. That is not clear, but I hope that it is accurate.

In other words, it appears that delegated powers are being used to expand the scope of ministers’ delegated powers. The DPLR Committee concluded that, while that is “within vires” and is therefore, in its view, lawful, it is nonetheless, as I have just said,

“an unusual or unexpected use of”

delegated powers.

The DPLR Committee went on to say that that is

“something the lead committee”—

namely, the Justice Committee—might wish

“to raise with the relevant minister when taking evidence on the instrument.”

I am therefore raising it now, to get on the record the Scottish Government’s explanation of why it is using that rather convoluted procedure. I hope that I have understood and summarised the points correctly.

Humza Yousaf

I do not disagree with the DPLR Committee’s description of the process as “unusual”, or the use of the power in section 84(1) of the 2003 act as “unexpected”. To answer the convener’s question, we are using the process because it is probably the most expedient way to proceed. We do not think that introducing primary legislation would be the most effective way to proceed, and, to be frank, we are not sure that we can achieve the outcome that we wish, in the manner and at the pace that we would hope to do so, without taking the action that we propose to take.

The convener is right to highlight that the DPLR Committee said that there is no suggestion that the instrument is outwith vires; it is important to put that on the record. However, as I said, the process is the only way by which we feel that we can achieve the outcome that we wish to achieve without having to introduce primary legislation.

The Convener

No other member of the committee has indicated that they wish to ask any questions or make any comments, so we move straight to item 5, which is the formal business in relation to the instrument.

Motion moved,

That the Justice Committee recommends that the Criminal Justice (Scotland) Act 2003 (Supplemental Provisions) Order 2021 [draft] be approved.—[Humza Yousaf.]

Motion agreed to.

Community Orders (Coronavirus) (Scotland) Regulations 2021 [Draft]

The Convener

We move to item 6, which is consideration of another affirmative instrument. I refer members to the relevant paper in their pack, and to the letters from the Howard League Scotland and Dr Hannah Graham. I invite the cabinet secretary to make a brief opening statement on the instrument, and I will then take questions from members.

Humza Yousaf

Thank you for inviting me to give evidence on the draft Community Orders (Coronavirus) (Scotland) Regulations 2021. It might help the committee if I briefly set out the Scottish Government’s position. We are seeking parliamentary approval to reduce the unpaid work or other activity requirements of some existing community payback orders, in order to ease pressure on local authorities as the pandemic continues and to ensure that the community justice system can continue to operate effectively.

Committee members will be well aware of the enormous impact that the Covid-19 pandemic has had on the justice system. I have been impressed with the continued adaptability, resilience and hard work that have been demonstrated across the system. In particular, I am extremely grateful to the justice social work unpaid work teams, third sector partners and others, who have all continued to deliver community justice services and related support in the context of necessary public health restrictions.

Throughout the pandemic, justice social work has continued to deliver many of the requirements of CPOs and to prioritise high-risk cases. However, one area that has proved to be particularly challenging—for reasons that I hope are understandable—has been the delivery of unpaid work hours. Due to capacity constraints that have resulted from adhering to local and national restrictions, it has not been possible to deliver unpaid work hours at the pace that is usually expected. The latest data suggests that there are likely to be more than 800,000 hours outstanding across Scotland. A significant reduction in justice social work capacity means that there is a high risk that those hours will not be deliverable within the timescales that are expected by the courts. That could lead not only to the system being completely overwhelmed, but to sheriffs and the public losing confidence that CPOs can deliver justice at all.

Significant barriers will remain to areas operating at full capacity once the latest restrictions are eased, because, inevitably, some restrictions will remain in place until the vaccine roll-out is complete. At the same time, we expect the volume of unpaid work hours to rise significantly as court business resumes. As has been highlighted to the committee in previous correspondence, Social Work Scotland has indicated that the system could become overwhelmed if no action is taken. Similar concerns have also been raised by Community Justice Scotland and the Scottish Association of Social Work. In addition, Scottish Government analysis suggests that, if court business returns to pre-Covid levels while the capacity to deliver unpaid work remains constrained, in excess of one million unpaid work hours could be outstanding by July if no other action is taken. That means that there is clear potential for what is already a challenging situation becoming significantly worse.

I take those concerns seriously, which is why I consider that action is necessary to ensure that existing orders can be delivered safely within a reasonable timescale and that new orders can be started promptly once restrictions ease. The regulations propose to vary all unpaid work hours and other activity requirements in CPOs by reducing the number of hours that are imposed in each order by 35 per cent. The reduction would apply to all CPOs that were imposed prior to the regulations coming into force, with an unpaid work or other activity requirement when hours are outstanding.

The only exceptions are CPOs that were imposed, either entirely or partially, for domestic abuse, sexual offences or stalking. The exclusion of those offences is intended to mitigate risks arising from the particular barriers that exist to reporting those offences, some of which we discussed during the stage 2 proceedings earlier today. Those barriers are not found to the same extent with other offences. The Scottish Government and other justice organisations have taken steps to reduce such barriers in recent years.

I acknowledge that the regulations contain extraordinary powers, which are intended to be used only when absolutely necessary. Under ordinary circumstances, we would never propose—or even consider proposing—altering sentences that have been imposed by the courts. It is a sign of just how much of an impact the pandemic has had that we are proposing to do that today. I assure victims of crime and others that the justice system continues to hold those who commit offences to account, and to keep our communities safe.

The regulations focus specifically on unpaid work or other activity requirements only; all other requirements will remain in place. That means that individuals who require supervision or specific interventions to address their offending will continue to receive that. The regulations strike an appropriate balance between removing enough hours to assist justice social work services and ensuring that individuals complete the majority of their unpaid work requirement, as imposed by the courts. The regulations are a proportionate and necessary response to a global pandemic. They will help to ensure that Scotland’s justice system can function effectively in extraordinary circumstances.

I hope that that is helpful. I am happy to answer questions.


Four members have indicated that they have questions. If I may, I will take all the questions before coming back to the cabinet secretary to allow him to respond to them.

Liam Kerr

There are two parts to what I will ask. To be clear, so that viewers understand exactly what is happening, in practical terms, the proposals mean that a criminal—part of whose punishment a court felt should be in the form of unpaid work—will have that punishment written off and nothing will be put in its place as punishment for the crime. If I am right on that, I am not sure that victims will see that as holding criminals “to account”, as the cabinet secretary said.

Having confirmed that that is the case, will the cabinet secretary also confirm precisely what the Scottish Government has been doing during this period to anticipate and address these issues in order to try to ensure that we did not find ourselves in the position that we appear to be in today?

Rhoda Grant

We all understand that we are in a pandemic—[Inaudible.]—regard to people’s safety; I think that we take that as read. Nonetheless, I have some concerns, because punishments as well as actions to divert people from offending behaviour were handed down by the courts. What discussions has the cabinet secretary had with sheriffs to ensure that they remain confident in community disposals? The last thing that we want is the Government’s action leading to an increase in the number of people who are in prison, which has its own risks in a pandemic. We therefore need to be very careful.

What consideration has the cabinet secretary given to putting alternative provision in place, such as online education? That could take the same time commitment as unpaid work, but it might leave people with a qualification or something that they could build on in the future, and it would use the time that was to be set aside for reparation.

How will the cabinet secretary ensure that the action that was to be taken to divert people from offending behaviour as part of the sentence still takes place? We need to address offending behaviour and make sure that it is not repeated; otherwise, we will put people on a merry-go-round that takes them in and out of court. What steps has he taken to ensure that the Government’s action will not in any way detrimentally affect that approach?

John Finnie

I have a few comments and a couple of queries for the cabinet secretary. I fully endorse his position. A pragmatic approach is being taken. Indeed, it would be blissfully naive to assume that unpaid work hours would not be impacted in any way by a global pandemic, as everything else has been.

We have had representations from the Howard League with regard to the exclusions. The cabinet secretary knows that I am a very strong supporter of all measures that are taken against perpetrators of domestic violence. However, if a decision has been taken on a disposal that involves unpaid work, surely that will have been informed by a risk assessment. I would like to think that risk assessment is an on-going process. Is it therefore populist to exclude some of those categories? Of course, I understand the pernicious nature of domestic violence, stalking and crimes to which there is an almost psychological aspect. However, I presume that that is taken account of when the sentencing sheriff reaches their disposal. Will the cabinet secretary comment on that, please?

With regard to the letter that we received from Dr Hannah Graham on ECHR compliance, are you content that there is a robust legal basis for the proposals? Although I know that you do not, by convention, share your advice with us, will you comment on that as well, please?

As a general principle, I of course agree with my colleague Rhoda Grant about activity being meaningful and about exploring potential alternatives, but we have to be realistic. We are aware of the challenges that exist throughout our criminal justice system, which are no different from the challenges in every other walk of life.

I absolutely support the pragmatic approach, but I ask the cabinet secretary to address those few issues, please.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

Like John Finnie, I completely agree with the cabinet secretary’s proposals. We need to be pragmatic. I disagree with Liam Kerr, who opened the discussion by talking about how justice could be brought into disrepute. The cabinet secretary is right that that is exactly the effect that there could be come July or August, or whenever it might be, if we do not do anything and millions of hours of unpaid work have not been done. That is more likely to mean that sheriffs would lose faith in CPOs. It is also important to note that the cabinet secretary said that the deduction will be brought into play only for unpaid work.

I have a different concern from those of Liam Kerr and Rhoda Grant, in that I question whether the cabinet secretary thinks that the 35 per cent reduction will, in fact, be enough. I say that because we do not know for how long restrictions will continue or whether new restrictions will be needed, although we all hope that they will not be needed. I apologise if I have missed this, but is provision for a review built in, so that we can consider whether further reductions might be needed at some point or whether—as Rhoda Grant and John Finnie said—unpaid work hours could be replaced with something else that might work?

I should declare my interest as a registered social worker with the Scottish Social Services Council.

Liam McArthur (Orkney Islands) (LD)

As other colleagues have suggested, the proposals appear from my perspective to be a pragmatic response to one of the many challenges that have been thrown up by the pandemic. As Fulton MacGregor said, doing nothing, sticking our fingers in our ears and wishing the issue away is not a response that the public would be terribly grateful for, either. Given the reports over the past week of significant Covid outbreaks in our prison estate, which is already bursting at the seams, a pragmatic approach to the orders along the lines that the cabinet secretary has suggested is a reasonable one to take.

I hope that the cabinet secretary will address John Finnie’s point about exclusions. As he rightly said, all this has to be done on the basis of risk. If the risk has been assessed and the orders have been deemed appropriate, it is difficult to see how an intervention that excludes some offences and not others can be justified in relation to the approach towards discounting that is being taken. Although I am sure that the cabinet secretary will address that, I want to back up what John Finnie said in that regard.

The Convener

We do not often have such a lengthy debate on an affirmative SSI, but the question that has been puzzling me as I have been listening to the debate is: given that this situation was wholly predictable, why has the budget for criminal justice social work been frozen? Perhaps the cabinet secretary could respond to that question as well as to the others that committee members have asked in relation to the SSI.

Humza Yousaf

I am happy to address that point as well as all the other points. I will try to go through all the questions in the order that they were put to me, but if I miss anybody out, please tell me, and I will be happy to listen.

I do not agree with Liam Kerr’s premise that we are writing off community orders. We clearly are not writing them off; we are reducing the unpaid work element by 35 per cent. That means that the majority of the hours that are imposed—65 per cent—will still have to be completed by individuals. It is not a case of the orders being written off.

I am not exactly sure what Liam Kerr means with his question on why the issue could not have been anticipated. We all realise the effects of the global pandemic and the challenges that it has brought. Nobody could have anticipated the length of time for which we have had to live under restrictions or the full impact or effect on organisations. It is not just about being able to get people back into groups of five, six, seven or eight and getting them into a minibus to go off and paint a local community centre; it is about the fact that resources at local authority level have had to be diverted away from criminal justice social work and put into other departments in order to respond to the Covid-19 pandemic. Those are the reasons why we are in the situation that we are in.

Rhoda Grant made some excellent points. I have had discussions with sheriffs, as have my officials. Along with Community Justice Scotland, we are talking to sheriffs about our plans. Our concern is that, if the system was overwhelmed, sheriffs would have no alternative but to give people a custodial sentence. As Liam McArthur suggests, that would not be a wise move at a time when some of our prisons are already full.

Rhoda Grant made other helpful remarks. I can give her an absolute assurance that the interventions that are in place in a community order to address somebody’s offending behaviour will not be affected by the reduction in unpaid work hours. For example, if interventions are still necessary to address a person’s substance abuse issues, they will continue. At the very least, they will not be affected by the 35 per cent reduction. Some local authorities have pursued alternatives where that is possible.

On John Finnie’s questions, I could probably be accused of many things, but being populist on the issue is perhaps not one of them. This is not a particularly popular policy, generally speaking, but it is a necessary policy for us to implement. It involves pragmatic and sensible governance, and it is important for us to address the issue head-on.

On the question that John Finnie and Liam McArthur asked, which was also asked by the Howard League and Dr Hannah Graham, I listen to organisations such as the Howard League and to individuals such as Hannah Graham carefully, and I can give an absolute assurance that we have a legal basis for what we are doing. Under article 14 of the ECHR, there can be objective justification for treating various people and categories differently. We are excluding certain offences because of the unique dynamic involved—in the majority of cases, that tends to be the dynamic of men’s power over women and the barriers that exist to reporting domestic abuse, sexual offences and stalking, which are different from the barriers in relation to other offences. That is not to say that there are not barriers to reporting other offences—for example, I know that there are barriers to reporting hate crime—but there is a unique dynamic when it comes to the offences that we are excluding. We believe that we are legally justified in making the exclusions that we are making.

Fulton MacGregor made a fine point. He will probably have noted that Social Work Scotland asked us to go further than we are going. There is no review mechanism built in per se, but we will keep the issue under review.

On the convener’s question about the budget, we have allocated £50 million in our recovery, renewal and transformation project. Understandably, a lot of the focus of that £50 million is on the backlog of court cases, but I can confirm that the £50 million will also be used to bolster the community justice arm of the justice system.

The Convener

We move to formal consideration of motion S5M-24033. I ask the cabinet secretary to move the motion.

Motion moved,

That the Justice Committee recommends that the Community Orders (Coronavirus) (Scotland) Regulations 2021 [draft] be approved.—[Humza Yousaf]

The question is, that motion S5M-24033, in the name of Humza Yousaf, be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.


Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Robison, Shona (Dundee City East) (SNP)


Kerr, Liam (North East Scotland) (Con)
Tomkins, Adam (Glasgow) (Con)

The result of the division is: For 7, Against 2, Abstentions 0.

Motion agreed to.

The Convener

I invite the committee to agree to delegate to me the publication of a short factual report on our deliberations on both the affirmative SSIs that we have considered today.

That concludes the public part of the meeting. Our next meeting is scheduled to take place a week today, but that will be confirmed in due course.

12:31 Meeting continued in private until 12:48.