Meeting of the Parliament (Hybrid)

Meeting date: Tuesday, November 16, 2021

Official Report 986KB pdf

---

Topical Question Time

The next item of business is topical question time. In order to get in as many questions as possible, short and succinct questions and responses would be appreciated.

---

Reproductive Health Facilities (Access)

To ask the Scottish Government, in light of reports of a legal opinion stating that local authorities cannot use their byelaw powers to implement buffer zones at national health service reproductive health facilities, how it will ensure that women have access to these services free from harassment. (S6T-00293)

Our programme for government includes a commitment to support any local authority that wishes to use byelaws to establish buffer zones. In the Scottish Parliament—and, it seems, in local government—we are all agreed that it is absolutely unacceptable for any woman to face harassment when accessing healthcare. I am not trying to shift the burden on to local authorities, but we do not share the view that byelaws cannot be used. We will work with local authorities to explore every possible avenue to find a way forward, and ministers will look at bringing together key parties as soon as possible to discuss potential solutions.

In addition, the Scottish Government looks forward to the introduction of Gillian Mackay’s proposed member’s bill, and I am happy to discuss her proposal with her.

Does the minister not accept, however, that it is the Scottish Government‘s responsibility to ensure that women have safe access to national health service facilities? We know that seven hospitals and clinics in Scotland have been repeatedly targeted. Given that there seem to be legal problems, and that we do not want a postcode lottery in which some local authorities take action while others do not, will the minister now consider Scotland-wide legislation to create buffer zones around such facilities?

The Government absolutely supports the principle of protected spaces, which is why we have said that we will support local authority use of byelaws. With regard to our progress on the issue, my officials will meet Convention of Scottish Local Authorities and local authority representatives next week to find a way forward. I also plan to convene a ministerial working group, so I will be taking the lead to bring together interested parties, including COSLA, the health service and the police service, to urgently find a way forward.

I am absolutely determined to make progress on the matter. I have made it crystal clear that I do not disagree with Gillian Mackay on the issue. In many ways, I look forward to seeing her proposed member’s bill;. We will look closely at the detail, but I think that we largely agree on the principles.

Does the minister not accept, however, that it would be far better if the Scottish Government introduced legislation instead of relying on a private member’s bill or on local authorities to act in situations in which they have been advised that they do not have legal competence?

We do not share the view that byelaws cannot be used. One of the main reasons that we are keen to work with local authorities on the issue is that we think that the use of byelaws would be the fastest way of finding a solution. It will take time for primary legislation to pass through Parliament and be enacted, and using byelaws would be far speedier than any other method in resolving the situation. However, I make it clear that I am willing to work with local authorities, the police and the health service and that I am determined to make progress on the issue.

I thank the minister for her indication regarding working together on my proposal for a member’s bill. Given that it will take quite a while for primary legislation to come forward and that there seems to be a legal impasse between the Scottish Government and local authorities, has the minister given any thought to what temporary measures we could put in place to ensure that women are not harassed when they access such facilities?

As I outlined, I am keen to find a way forward, and I would like a speedy resolution to the situation. One of the reasons that I am keen to use byelaws is that I think that they would be the fastest way forward. Nonetheless, my officials are meeting COSLA and specific local authorities next week, and finding a fast solution will be one of the main items on the agenda. As I said, I am also keen to convene a ministerial working group and to bring urgency to the resolution of the situation.

I was proud to speak alongside Gillian Mackay in her members’ business debate on the issue, joining members from all parties in our shared belief that somebody’s right to freedom of speech does not trump somebody’s right to medical privacy or the right to seek intimate medical care without molestation. The minister shattered that consensus by saying that the Government was unmoved.

If the minister is determined to state that there is a difference of legal opinion, I note that the opinion that the Society of Local Authority Lawyers and Administrators in Scotland received was “unequivocal” that byelaws could not be used by local authorities to create buffer zones. Has the Scottish Government sought legal opinion to the contrary? If so, will she publish it?

I do not need to rehearse the principles of publishing legal opinion. The Government supports the principle of protected spaces, which is why we have said that we will support any local authority that wishes to introduce byelaws to ensure that women have protected spaces and are not harassed as they access healthcare. Let me be absolutely clear: we are committed to that principle, and I am committed to finding a way forward.

---

Bail and Release from Custody (Consultation)

To ask the Scottish Government which victim support organisations it consulted with ahead of drafting the paper, Consultation on Bail and Release from Custody Arrangements in Scotland. (S6T-00284)

In developing proposals for formal consultation, the Scottish Government discussed the issues informally with a range of partners, including the victims organisation collaboration forum Scotland, which is chaired by Victim Support Scotland. Public protection and victim safety are at the heart of the reform proposals, which are focused on reducing crime, reoffending and future victimisation.

Building on engagement with victims organisations that took place throughout the pandemic, we will continue to work closely with them and a range of other partners during the consultation and bill processes to ensure that their views are heard and that they inform future decisions in this critical area.

I want to deliver further improvements to the safety of the people of Scotland by refocusing the use of custody so that it is for those who pose a risk to public safety. The recorded crime rate remains at one of its lowest levels since 1974; it is down 41 per cent since 2006-07. I want to build further on our achievements by ensuring that custody, including the use of remand, is used appropriately and that enhanced support is provided to those whose offending behaviour is dealt with in the community.

The consultation includes a proposal to shorten the automatic early release trigger for criminals from when they have served half of their sentence to when they have served just a third. We know that 30 per cent of prisoners who receive a sentence of less than four years go on to reoffend, compared with just 8 per cent of those who are sentenced to four years or more. The evidence is clear that the shorter the sentence, the higher the reoffending rate, which undoubtedly further traumatises victims of crime and does nothing to solve the problems of overcrowding in our prisons and reoffending.

What message of fairness and justice will be sent to the victims of crimes by releasing criminals a third of the way through their sentence?

The proposals that Jamie Greene refers to are one or two among a whole list of proposals that seek to address a number of concerns, not least those that he has raised in relation to, for example, the high remand population. It is always true that discretion in these areas lies with the courts, which, when they pass sentence, can take into account the issues that Jamie Greene has mentioned. These matters are dealt with by the courts—that is the way that it should be.

We want to have a genuine discussion that is based on the almost consensual concerns that have been expressed by members from across the Parliament.

It is also true to say that, if we could further reduce the prison population, the amount of time and effort that could be spent on individual prisoners would be greater, thereby reducing even further the recidivism rate. The continuation of our policies that have led to some of the lowest recorded crime rates ever and the lowest number of recorded homicides ever is consistent with the proposals. However, we will wait to see what people come back with.

It is interesting that the cabinet secretary did not address the issue of reoffending, which I presume is covered in the consultation. Week after week, we come to the chamber and hear countless proposals for watering down sentencing guidelines, whether on how criminals under the age of 25 are treated or on automatic release triggers. Now there is the prospect of giving ministers the power to release prisoners simply out of fear of our prisons becoming full.

The move reeks of a panic-stricken Government that is looking down the barrel of a court backlog of tens of thousands of cases that are yet to be heard. We are frequently reminded by the cabinet secretary that decisions about remand and sentencing are, rightly, made by independent judges. He has just said so again. Why does he now think that ministers know better than they do?

The member says that he presumes that something is in the consultation: he obviously does not know. He should read those things before he comes to ask questions.

It is the case that discretion will remain with the courts. That is how we do things in this country. Independent courts decide on those things. It is also true that remand is at a very high level in Scotland. The member is right to be concerned about the backlog of cases, which is not peculiar to this jurisdiction and is due to the pandemic.

He made a point about automatic early release. It was the Conservatives who brought in automatic early release but then voted against it the last time that this Parliament voted on it. I do not know where the Tories are on justice. I do not think they have a clue what is meant by “soft justice”. We want smart, effective justice that ensures that the right people are in prison and that people are given the rehabilitation opportunities that they should have, so that we can continue to drive down the levels of recidivism, as we are successfully doing.

I welcome the launch of the consultation, which has been a core part of the discussion in the Criminal Justice Committee this session. The need to prevent indefinite imprisonment via remand has been mentioned on several occasions. Will the cabinet secretary expand on how the consultation will tackle the issues of prison population and remand?

The member asks an important question—one that has already been alluded to by Jamie Greene. Parliament has been clear, in recent years, that too many people are being held on remand. That belief is shared by all the parties.

It is right that courts should make such decisions on the basis of the individual cases that come before them. The consultation looks afresh at the legal framework within which those decisions are made. If people do not accept that, perhaps they can offer an alternative way forward, but I believe that it is where the Parliament wants to concentrate its activities. We want remand to be used only when it is absolutely necessary.

The proposals emphasise the importance of putting public safety and victim safety at the forefront of decisions about remand. When an accused person does not pose a significant risk but requires additional support such as drug treatment or supervision in the community, bail should be the default option, with the necessary enhanced support provided.

I am grateful that the Criminal Justice Committee, of which the member is the convener, has focused on the issue, and I look forward to working with members during the consultation and the bill process. I appreciated the opportunity to have an early discussion of the issue when I attended a committee meeting in September. At that point, I welcomed Jamie Greene’s comments that there are human rights aspects to the matter, particularly in relation to the length of time for which people are held on remand.

I remind members that remand is now at 30 per cent of the prison population, which is too high. I urge those who have an interest to respond to the proposals for reform.

The cabinet secretary will be aware that there has been a significant rise in the use of remand in Scotland, with the number of prisoners on remand almost doubling between April 2020 and April of this year. By the end of that period, close to one in four prisoners was on remand. Worryingly, 40 per cent of those on remand were aged between 16 and 20.

There is some evidence to suggest that requests for supervised bail orders are at a historically low level, with possible explanations being a lack of awareness of the programmes that are available and the scarcity of short-term funding.

Given that the consultation on bail and release from custody has just begun, and given that we need an answer to the problem in the short to medium term, will the cabinet secretary say whether the Government will make the judiciary more aware of supervised bail orders as an immediate or medium-term step, so that we can start to reduce the high number of prisoners on remand in Scotland sooner rather than later?

As the member knows, I cannot speak for the judiciary, but they are aware of the alternatives that they can use. We sometimes have to ensure that people have confidence in those alternatives.

I hope that the consultation will shed some light on another issue with remand, which is what we can do to protect victims when those who are accused are placed on remand. There is more work to do on that.

The member has previously raised the issue of the high number of people on remand. We intend to address that issue, and I am grateful for comments that the member has made about that in the past. We all seem to agree that the situation must be addressed. If others have ideas about how to address the situation, they should come forward with those proposals and we will listen to them.

That concludes topical question time.