Commissioner for Victims and Witnesses (Scotland) Bill
Item 2 is an evidence session on the Commissioner for Victims and Witnesses (Scotland) Bill.
The Commissioner for Victims and Witnesses (Scotland) Bill was introduced on 27 May last year by David Stewart MSP, and was one of four members’ bills that were referred to the committee in early June. Two Scottish Government bills were referred to the committee after the summer recess. The committee was faced with so many bills that required to be considered before the end of the session that it was almost inevitable that it would not have time to carry out stage 1 inquiries into all of them. As a result of the difficult decisions that the committee had to make, Mr Stewart’s bill was left behind at the end of the queue. The committee has already put on record its unhappiness at finding itself in that position. Mr Stewart has been invited to the meeting so that he at least has an opportunity to put on record his reasons for introducing his bill and to answer general questions about its provisions.
I welcome David Stewart, who is accompanied by Ruth McGill of the Parliament’s non-Executive bills unit. I invite Mr Stewart to make a short opening statement. I will then invite members of the committee to ask questions.
I thank you very much for your kind introduction, convener, and I thank members of the committee for inviting me to speak in this legacy hearing.
As members would expect, I am a touch disappointed that this will be the last hurrah for my bill, at least in this parliamentary session, but I stress that I understand that that is not the committee’s fault in any way. I hope that, post 5 May, more streamlined procedures will allow more members’ bills to be considered in the next session.
The main objective of my bill is to promote and safeguard the interests of victims and witnesses and project them to the heart of the criminal justice system. The objective is to have a champion who ensures that the needs of victims and witnesses are met. Being pro-victim does not, of course, make me or anyone else anti-offender. I do not believe in any way that this is a zero-sum game.
The champion must have a high profile and be very difficult to ignore, and they must ensure that the needs of victims and witnesses are centre stage. In a sense, I think that I have seen the future. I have met the victims champion for England and Wales, Sara Payne, on two occasions at Westminster over the past couple of years, and I have met Louise Casey, who is the Commissioner for Victims and Witnesses for England and Wales, in the Ministry of Justice. I have also taken part in a videoconference with one of the four victims commissioners for Northern Ireland.
My motivation has two important elements. First, I have been inspired by the valuable work that Victim Support Scotland and other voluntary organisations such as Scottish Women’s Aid conduct throughout Scotland to support victims and witnesses. Indeed, it was Victim Support Scotland’s manifesto commitment in 2007 to have a victims commissioner that inspired me to take the bill forward. There is also my experience in the voluntary sector, where I worked as an assistant director for a national charity for two years.
Secondly, I have been greatly affected by the experiences of constituents who have been forced into the criminal justice system through no fault of their own and have been left hurt, confused and angry. I will give one example. I recently saw a young woman constituent who had, with her daughter, been awakened in the middle of the night by the noise of petrol being poured through their letterbox. They escaped the inferno that the house became purely because neighbours found a ladder outside, and they were able to escape as the house literally went up in flames around them. They thought that the court was another ordeal—another cycle in their sense of humiliation—and that they were bit players in a drama in which they had no script.
It is true that the situation of victims and witnesses in Scotland has greatly improved as a result of a range of initiatives such as the victims strategy, the use of victim statements and the victim notification scheme. I recognise that, but the point is that, although improvements have been made, a great deal more needs to be done. A number of important and effective voluntary organisations work in the interests of victims and witnesses, but there is no one co-ordinating voice, and no one has the statutory power to examine failures. The gap is between victims and victims organisations, and the Government.
Can we say that every relevant authority is meeting the requirements of the existing legislation to protect victims and witnesses and that there is a good balance of power between those who work in the interests of victims and witnesses, and the criminal justice system? A commissioner would enhance the work of existing organisations and would take things a step further to ensure that the needs of victims and witnesses cannot be ignored or be simply an afterthought. They should be central to the justice system.
I mentioned the Commissioner for Victims and Witnesses for England and Wales, Louise Casey. In giving evidence to the House of Commons Justice Select Committee in November last year, she said that her role as victims commissioner was
“to challenge the whole of the Criminal Justice System to do right by victims and witnesses.”
That is the intention of my bill.
The commissioner would be responsible for championing the rights of victims and raising awareness of their situation, and, of course, they would work with voluntary organisations, politicians, the police, the criminal justice system and civil servants to build a fairer and just system that puts victims’ needs first. It is important that victims and witnesses are protected from uncaring bureaucracy that is often unintentionally hurtful and damaging at a time of great suffering. The convener, as a lawyer, will know well that witnesses suffer trauma, too. Some 40 per cent of witnesses are victims, and many offenders are victims as well, of course, but, alas, time does not allow me to explore that matter in detail.
The bill includes a range of functions that would give the commissioner the flexibility to consult victims and witnesses and the organisations that work with them, so as to prioritise areas of work. Furthermore, I believe that the role of the commissioner would be developed greatly by the appointee.
It is not for me to identify all the priority areas at the outset—the commissioner should decide what is most important. However, the bill would allow the commissioner to carry out a range of activity and to respond to current challenges.
My commitment to the bill has led me to introduce it at a time of great financial pressures for all public services. I recognise the current financial climate, but I believe that the appointment of the commissioner is an important one that can be secured in a cost-effective way. I have set out a structure that I think would minimise costs. There might even be scope to reduce the costs further if the commissioner had the opportunity to share premises and resources with an existing commission or commissioner.
I recognise recent legislative developments, and I have drafted the bill in line with the latest governance and accountability requirements for commissions and commissioners.
I have introduced the Commissioner for Victims and Witnesses (Scotland) Bill because it is essential that Scotland has an independent commissioner to champion the rights of victims and witnesses. The role of the commissioner is not to run services; it is not to duplicate the work of the third sector; and it is not to be a competitor for funding. The proposed role is that of an independent champion, operating between victims, service providers and the Government, working outside but looking in. The commissioner is to be a voice; the role will provide a new road map for victims, reflecting the new European rights as covered by the Stockholm programme. It is a move to a system change so that, in Louise Casey’s words, victims will no longer be
“the poor relation of the criminal justice system”.
Thank you for that helpful opening statement. I commend you for your efforts in getting the bill as far as you have done.
Good morning, Mr Stewart. Thank you for coming to speak with us this morning. You have ably summarised for the committee some of the issues that led you to introduce the bill, and you have covered the motivations behind it. Have your thoughts about the merits of the bill’s provisions changed since it was introduced? Assuming that you are returned at the next election, would you be minded to reintroduce the bill following that election?
I will deal with the last question first. If re-elected, I am committed to reintroducing the bill. I understand that, if the content does not change substantially—that is partly an issue for the committee—I will not be required to carry out a new set of consultations in such circumstances, so I could do things a lot quicker.
Things have changed and matured since I first looked into the matter a number of years ago. How do I see the bill achieving its end objectives and doing more for victims? I am a little bit torn in my own mind about whether to adopt the England and Wales model, which involved having a champion, Sara Payne, who was in effect a ministerial appointment, with seconded staff from the civil service. Basically, they drew up the job description that led, a year later, to Louise Casey being appointed, as a quasi-minister and responsible to UK ministers.
Under my model, the commissioner would be an independent parliamentary appointment, in line with the other commissioners that we have. The office would be staffed by the commissioner, and they would have complete independence.
I am happy to do some further thinking about those two models before returning with the bill, hopefully, at stage 1 in the next session. The fundamental five or six functions that I would like to be undertaken by the person in post are not changed by that question, but those are two routes that could be taken. I would welcome the committee’s views.
Thank you—that is clear.
Good morning, Mr Stewart, and congratulations on taking the bill as far as you have. It is unfortunate that we have run out of time and that we were not able to complete our investigation into it.
In your introductory remarks, you mentioned that the commissioner would be an independent champion, challenging the whole of the criminal justice system. You said that the aim was to achieve a fairer, more just system. You spoke about a range of activities, with the commissioner having a wide-ranging remit. The bill provides for the commissioner’s general function
“to promote and safeguard the interests of victims and witnesses.”
Could you elaborate on exactly how the commissioner would carry that function out?
10:15
Following my experience in dealing with Louise Casey and Sara Payne, I think that the key point is to have an independent champion, whose work does not duplicate that of service providers—and the commissioner would not be a service provider. It should be someone who is outwith the system but who is in place as the champion for victims and witnesses, some of whom—as you will all have experienced in your casework—have had a terrible time in court.
The ability to investigate is important. Other bodies have a minor role in that regard, but if we consider the experience and the statistics from Scotland, we can see that there are very few substantial complaints from victims and witnesses. I would like there to be someone who is able to consider both investigations and complaints, and who can raise the profile of victims in Scotland.
There was a good analogy in Louise Casey’s evidence to the Justice Committee at Westminster. She said that the experience of witnesses in court is much like that of David against Goliath. That is a good analogy as regards their spending and the power and rights that they have.
I stress that victims are in the same boat as witnesses, who also feel completely alienated by the legal system. I am not being naive about it. I am not suggesting that having one commissioner and a small team of staff will revolutionise the criminal justice system overnight—of course not; I am just saying that there is a gap in the market. Northern Ireland, the Republic of Ireland, England and Wales, Australia and Spain have all gone down this route. As you will be well aware, the proposal to have a commissioner is also in keeping with the Stockholm declaration and with United Nations rights of victims.
I believe that there is a gap in the Scottish system. Although we have a good justice system in Scotland, powers to investigate, to do research and to examine complaints would be three key things that would make a difference for the Scottish legal system.
You mention the commissioner having a small staff. Do you have any views about how small or how large the staff complement would be in the commissioner’s office?
We carefully considered the financial resolution, under which we are required to identify staff and costings. It is a difficult matter. There is a market rate for commissioners, which you will be aware of, and there are minimum things that can be done by way of research. I took quite a lot of advice from academics about the minimum budget that would be required for research, even if the commissioner worked in conjunction with Victim Support Scotland. The minimum credible budget is around £50,000. If you consider the market rate for commissioners and the minimum amount for research, you can appreciate how the budget could mount up.
If I am re-elected, I will again consider very carefully the functions of the commissioner and the spend that I have identified. I understand the committee’s view that, in the current financial climate, the budget would have to be as tight and as small as possible. More could be done with regard to co-location with other commissioners, perhaps with synergy on administration and finance. That would be a way to cut costs. I do not want there to be some mammoth bureaucracy; I would like the organisation to operate outwith the system, and not as a service provider. I strongly believe that there is a gap in the market, and that we could do a lot more for victims and witnesses by having the post of commissioner and the postholder in place.
When you were answering questions from Mr Thompson, you said that the commissioner would be a champion for victims and witnesses. That is laudable, and we would all agree with the principle of that. In practical terms, what would they do? What does being a champion for victims and witnesses mean?
You have probably identified six key functions, both from the bill and from my opening remarks, and I ensured that there was no real overlap or duplication between them. I stress again that the commissioner would not be a service provider. They are filling the gap between victims and victims organisations, and the Government.
I have already identified, first, the power to carry out investigations and, secondly, the power to consider research. The third one is the complaints role. Another role is to be a filter for legislation. My idea is that, when a Government, of whatever political colour, is considering introducing new legislation affecting victims, it should ask the commissioner for their views on whether or not that legislation would be appropriate for victims and witnesses. That would be a gatekeeper role.
The other role for the commissioner would be to work closely with organisations such as Victim Support Scotland, identifying best practice and ensuring that that is a national standard for victims. I know that that has been considered in England and Wales. It is important for us to lay out clear best practice for dealing with victims in Scotland, including through training. We have some way to go to identify best practice and ensure that it is adopted across all of Scotland.
I certainly agree that the situation is not perfect. Yesterday, I had a meeting with Victim Support Scotland in Renfrewshire, so I understand some of the comments that you make. However, I am not entirely convinced about the existence of the gap that you are talking about, although I will leave others to deal with that.
I stress that the proposal is not something that I have just dreamed up. The key point is that the proposal came from Victim Support Scotland’s manifesto, and I have looked at best practice across Europe.
Various organisations already provide dedicated services and support for victims and witnesses in Scotland. Indeed, in your opening statement, you said that you were inspired by organisations such as Victim Support Scotland and Scottish Women’s Aid. Is there a possibility that much of the work that it is envisaged that the commissioner would do is already being done and that, if we were to appoint a commissioner, as your bill suggests, that might dilute some of the work that is already being undertaken by the organisations that support victims?
No. Clearly, we are never going to have a perfect system of criminal justice. I live in the real world and I understand that. The key point is that the model that I am suggesting has been proposed by the voluntary organisations themselves. It is not a competitor or a challenger; it is a body that will stand outwith the system to fill the gap between victims and victims organisations, and the Government, which is an important role.
There has been a big debate about whether, in every policy area, we should be focusing on the service providers or the service consumers. However, that is a wider debate for another day.
My view involves a consideration of the system as a whole. In some areas, there is system failure. It is important that we have someone who is not tied into the Government—which is why I have tended towards the parliamentary model rather than the ministerial model—and who has the independence of mind to say that, whatever Government we have in the United Kingdom or Scotland, things are not working right. I have often used an example that was given to me by Sara Payne, which is that the treatment of rape victims in the court system is appalling. I believe that a commissioner who saw the trauma and tragedy that women face in court, and the low conviction rate, would realise that that is an area into which they could conduct a massive investigation and point the Government in the direction of ways of ensuring better treatment of victims and witnesses, through legislation and other means.
One of the key points is that we should not necessarily have a universal service for everyone against whom an offence has been committed, whether they have reported it or not. As Louise Casey said to me, we should not have the same service for someone whose lawnmower has been stolen as we have for someone whose son has been murdered, which is the case in England.
Some constituents of mine who have been victims of crime have expressed concern about the fact that someone who has been found guilty of the offence has served less time in prison than the victims thought that they would and are back out on the streets without the victims knowing anything about it. Do you envisage the commissioner having a role at that end?
Most definitely. That is a good example of the kind of thing that the commissioner would be involved in, and concerns the creation of best practice. Constituents of mine who have been victims of crime have told me about the lack of communication on the part of the court—I am sure that members of the committee have heard the same concerns from their constituents.
This goes back to my analogy about David and Goliath. Victims and witnesses often feel that they are ignored in court—the lawyers around the table will have more experience of that than I have. They feel that they are going into a play but they do not know the script. Witnesses who turn up at court are constantly told to go elsewhere. On that point, Victim Support Scotland has identified a good piece of good practice in Dundee, where people are phoned and told when to turn up in court rather than having to sit around the court for hours and hours. There are also issues about proper separation between witnesses and victims, which I would stress as well.
We need more communication and more best practice. I envisage that the commissioner will, along with the organisations, identify what that best practice should be and shout loud to Governments of whatever political colour that that has to happen in order to ensure a better deal for victims and witnesses.
You mentioned the support that a victims commissioner could give to rape victims. Are there any other areas that are not currently being addressed by those who work with victims that could be taken forward by a victims commissioner?
Most definitely. Members will have seen the Victim Support Scotland manifesto, which has a series of well-argued points. A couple of issues in particular must be considered. One is the role of compensation in court, as victims can often wait for ever to get that compensation. The issue of criminal injuries compensation is important in that regard—I know that it is a reserved issue, but I believe that it is administered in Glasgow. There are real issues to do with the complexity of the criminal injuries compensation form. I am reliably told that it is more than 60 pages long and is a nightmare to fill in. The scheme itself is good, but the problem is that it is surrounded by bureaucracy. The commissioner could highlight, along with colleagues in Westminster, the anomalies that face victims and witnesses, who end up being given the runaround by the criminal justice system.
You said that you had had discussions with Louise Casey, the commissioner in England and Wales, and one of the commissioners in Northern Ireland. What lessons have you learned from those discussions that might translate into good practice that could be implemented in Scotland?
The discussions have reinforced my impression that there is a need for Scotland to have a commissioner. Although devolution means that we can do things differently in Scotland, it is sometimes good to take on best practice from other countries.
I should issue a short health warning about the Northern Ireland situation. As you are probably aware, the Commission for Victims and Survivors in Northern Ireland has within its remit issues relating to the troubles as well, so it does not play a simple, straightforward role in relation to victims.
I have spent more time with Louise Casey and Sara Payne—I have had three quite intensive meetings with them. The key point that I have picked up from Louise Casey is that the issue is not just about money and service delivery; it is about having a system change. The lawyers around the table will be aware that the Scottish and English legal systems are long established and extremely powerful and that, sometimes, victims can feel that they are small players in a big script. We need to ensure that victims and witnesses have a stronger voice.
Louise Casey said that, when she was first appointed, there were some worries and concerns from voluntary organisations in England and Wales that felt threatened by the establishment of her post and feared that they might lose resources as a result—they felt that dealing with victims was their job, thank you very much. However, I stress that nobody owns victims and witnesses, and the commissioner will have as valid a role as anyone else. I have made clear my support for Victim Support Scotland and Scottish Women’s Aid. My point is that it should be for the commissioner and the Government to set the bar and for the voluntary organisations to carry out the work that is required. Do not get me wrong; they will have a role to play in contributing to the debate. I am merely making the point that nobody owns this issue. If there is a gap in the market, it is incumbent on politicians of every colour to come up with a solution. I believe that the solution is the commissioner.
I want to follow up on the issue of duplication that Cathie Craigie raised and which I touched on earlier.
I have read Victim Support Scotland’s manifesto, and I discussed it at my meeting yesterday. You seemed to be suggesting that the commissioner would have a role in lobbying on behalf of victims—I am paraphrasing, obviously, but that is roughly what you were saying. Is that not exactly what that manifesto says that Victim Support Scotland is doing? Is that not what my meeting with Victim Support Scotland in Renfrewshire was about? Is that not what the national body is doing with the Cabinet Secretary for Justice and the Government?
On the point about issues such as the treatment of rape victims, there are organisations that not only help victims of rape through a very traumatic time but lobby on their behalf and conduct research—I am sure that there is no member of the committee who has not been approached by those organisations and discussed those matters with them.
I am still struggling to understand the difference between what a commissioner would do and what those other organisations already do. There is clearly overlap and, possibly, duplication.
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I stress that the commissioner is a policy idea of Victim Support Scotland, which believes that it is a good idea. No existing body has the exclusive or all-encompassing power to carry out investigations into problems with the system that affect victims. The commissioner would have other functions, but the unique proposal is that they should have the power to conduct investigations, which no other body has the expertise to carry out. That would be the key function. That is the answer to the question.
Under your bill, would the commissioner have the power to investigate individual cases?
No. The reason for that is that I am keeping an eye on resources. If unlimited funds were available, that would be a good idea. Instead, the commissioner would investigate if there was a systems breakdown in the criminal justice system that affected victims or witnesses. For example, if there were a series of complaints from rape victims about their treatment during court cases, the commissioner would use their judgment and could carry out a major inquiry into the role of rape victims in the court system. The commissioner would get involved if there was a system failure. That would be an important part of the commissioner’s job, but they would not be able to investigate every individual case that came before them, purely because of the resource implications.
There would be a general investigation if a system failure was identified or came to the fore.
Yes. Obviously, I expect the commissioner, which would be a high-powered post, to use their common sense and judgment. If they had a series of cases with a common theme in the Borders, the Highlands, the Lothians and Glasgow, I would expect them to use their insight and conduct an investigation. I stress that, like the Justice Committee, the commissioner would have the power to require witnesses to turn up and give evidence. If the commissioner was appointed by Parliament, I envisage that they would report to Parliament. I would expect that the Parliament would debate the report and that the Government would take action on the system failure. That is the route that I see for the commissioner.
Apart from the power to require witnesses to appear and the reporting to Parliament, could a slightly beefed up Victim Support Scotland not conduct or commission research if a particular issue came to the fore?
To conclude on your question about investigation, which is where we started, the key power that no other body has would be the power to investigate complaints. No one else has the clout to do that.
On research, I anticipate that the commissioner would collaborate with groups such as Victim Support Scotland to fund joint research. It is important that Victim Support Scotland should still have the role on research. I cannot speak for Victim Support Scotland, but I do not think that it wants to have the power to investigate, as that is not its job—it is a delivery agent. My organisation would fill the gap that exists in Scotland between the Government and victims organisations. The power to carry out investigations is powerful and would make a real difference. That is the added value of the commissioner.
I want to pursue Stewart Maxwell’s point. The issues about rape and compensation in the courts that you have identified are already in the public domain and we are fairly well aware of the issues. We already have a body that has the potential to undertake inquiries and that has all the powers that you talk about: the Scottish Human Rights Commission. Why could that body not fulfil the role? Have you made representations to it about its work programme to test the potential for that? Is that not the most obvious way forward?
I know that Mr Brown was influential in ensuring that the Scottish Human Rights Commission came into being and, personally, I am a big fan of it. I have met Alan Miller, the chairman, on two occasions. I was well aware of the need to speak to other commissions and commissioners and to understand what they do. I am not in the game of duplication and creating additional bureaucracy or of taking away anything from existing bodies.
On a more practical point, it would be natural for the commissioner for victims and witnesses to co-locate and share services with the Scottish Human Rights Commission. I am enthusiastic about that. However, from speaking to the bodies in Northern Ireland and England and Wales, I believe that the most effective way forward is to have a specialist in victims and witnesses. That is a huge area in its own right, which is why it needs a separate body that is not part of the Scottish Human Rights Commission. The bill is not an attempt to water down, run down or take funding away from that commission. It is merely a practical point. The advice that I was given, after a lot of consultation, was that we need a separate body. That is why I want a commissioner for victims and witnesses. The approach works well in England, Northern Ireland and, I believe, the Republic of Ireland.
The Scottish Human Rights Commission has a number of commissioners. Is it not possible to give one of the commissioners the particular role to fill the relatively narrow gap in the market that we seem to be identifying?
In my mind, the key issue is that it actually happens. I do not rule out further discussions with the Scottish Human Rights Commission to consider that specific point if I am re-elected. At the end of the day, if we had a commissioner with a role for victims, I would be happy, not just for me, but for victims and witnesses. I undertake to explore Mr Brown’s point in more detail if I am re-elected on 5 May.
As we have no further questions, I thank Mr Stewart for coming. The session has been helpful.
10:36
Meeting suspended.
10:39
On resuming—