Justice Committee

Meeting date: Tuesday, September 10, 2013

Official Report 426KB pdf

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Anti-social Behaviour, Crime and Policing Bill

Agenda item 3 is consideration of a legislative consent memorandum on the Anti-social Behaviour, Crime and Policing Bill, which is United Kingdom Parliament legislation. I welcome Kenny MacAskill, the Cabinet Secretary for Justice, who is accompanied by the Scottish Government officials Jim Wilson, policy officer with the criminal law and licensing division, and Peter Jamieson, policy manager with the police division. I invite the cabinet secretary to make a brief opening statement before I open up to questions from members. Get your pencils ready, members.

The draft legislative consent motion seeks approval for the United Kingdom Parliament to apply the relevant provisions of the Anti-social Behaviour, Crime and Policing Bill. Most of the bill does not extend to Scotland. The parts of the bill that extend to devolved areas relate to the abolition of the Police Negotiating Board, to dangerous dogs and to witness protection law.

We have agreed to the abolition of the PNB and intend to establish a separate police negotiating board for Scotland through the Criminal Justice (Scotland) Bill, which was introduced prior to the summer recess. The PNB provides a forum in which representatives of police officers and those who manage and fund police forces can consider questions relating to police hours of duty, leave, pay and allowances, pensions and clothing and equipment. It operates on a UK basis, and the Home Secretary, the Scottish ministers and the Department of Justice in Northern Ireland are required to consult it before making regulations on relevant matters.

Following the recommendations of the Winsor review of police remuneration and conditions in England and Wales, the Home Office intends to replace the UK PNB with a police remuneration review body for England and Wales. In July, the Scottish Government published a consultation paper that seeks views on the detailed arrangements for the functions, membership and procedures of the proposed PNBS. The consultation closes on Friday 27 September 2013. I reassure members that we will carefully consider all responses to our consultation and will consider the implementation and commencement of both bills as we move forward.

At present the offer of protected status—that is, witness protection—can be made only to people such as are listed in the Serious Organised Crime and Police Act 2005, which includes witnesses and informants, and judges, jurors and other people who work in the criminal justice system. Although that covers the majority of those who are at risk—they tend to be witnesses—we are aware that concerns have been raised about protection of vulnerable individuals whose lives may be at risk but who do not fall within the scope of the 2005 act. For example, they might be potential victims of forced marriage or other honour-based violence, who may be identified before any crime is committed. The purpose of the proposed amendment is not to alter the list that is set out in the 2005 act but to give the chief constable the discretion, on a case-by-case basis, to make protection arrangements for individuals whose lives are at risk but who are not currently covered.

Finally, on dangerous dogs, the bill contains provisions that will explicitly include attacks on assistance dogs as an aggravated offence under the Dangerous Dogs Act 1991. The bill will also ensure that the courts assess the character of the owner in determining whether a dog poses a danger to public safety. We think that that is a sensible response to the 2012 court judgment that called into question the existing powers of the courts in this area.

We believe that the extension of the relevant provisions to Scotland can be justified on the basis that it is a sensible and appropriate step to ensure effective and consistent implementation of various policy changes that affect England, Wales and Scotland. I hope that the committee will share our view that it is helpful that those changes be made through the UK bill and regard it as an effective and efficient use of the LCM procedure. I therefore ask the committee to support the legislative consent memorandum.

I will be happy to take any questions.

I intend to let members ask questions on the three categories—the Police Negotiating Board, dangerous dogs and witness protection—if that would be helpful.

Who wants to ask about the Police Negotiating Board?

Thank you, convener. Good morning, cabinet secretary.

I commend the Scottish Government’s approach of having a PNB for Scotland—it is something that I proposed many years ago. Will the chief officer ranks be included in that?

We are discussing that with the Scottish Chief Police Officers Staff Association. Our preference is that they be included. The chief officers are currently mulling that over.

Has any indication been given of what their position will be? It would be preferable if all Scottish police officers were covered by one body.

I think that they would be. The chief officers have matters to sign off. They must answer for themselves, but we are very hopeful that they will come on board. I share your view that it would be better if all ranks were covered.

Good morning, cabinet secretary. Did the Scottish Government ever consider following the UK’s review of the PNB?

We did not agree with the Winsor review. We have always taken on board the views of those who are involved with the police service, whether on the management side or on the side of those who represent staff, who uniformly wish to have a police negotiating board for Scotland. It is for that reason that we are establishing one. That is the desire of all sides who are represented at the table, and we are delighted to go down that route.

Can you provide some reassurance that, if the process goes ahead, the transition from the old PNB to the new Scottish PNB will be smooth?

Yes. That is fundamental. We have already established a standing committee—it is up and running, although it is not yet formally constituted on a statutory basis. We hope that there will be a legislative dovetailing, but there is a fall-back position of continuing with the existing PNB powers, so I can give you an assurance that matters can be dealt with.

On the financial implications, you say that it is likely that the establishment of a PNB for Scotland will be cost neutral. Are you quite sure that that will be the case? Might the costs rise?

I think that its establishment will be cost neutral. Although there will be matters that will have to be addressed on a distinctive basis—the Scottish Police Federation has raised that with us, as I am sure Mr Finnie knows—most of that is about access to information, which can be provided through other bodies. We believe that the establishment of a PNB for Scotland will be cost neutral; any costs would be fairly minor.

Given that management and the workforce representatives are clear that that is the structure that they want, unless there is a glaring issue, we would not wish to go in the direction of the UK Government. No one in Scotland—regardless of which side of the table they are on—wishes to follow the UK Government’s proposal.

I have a brief follow-up on the financial issue. At the moment, we contribute about 10 per cent, or £50,000 annually, to the cost of the PNB. Are you confident that the cost of the replacement body will be of that level?

Yes. I think that it would be fair to say that the body down south is pretty substantial. The number of people who have to sit around the table would struggle to fit in this room. I think that the number of people involved will decrease proportionately, because of the size of Scotland, and that the amount of money that we have set aside will be sufficient.

The relatively minor concerns that the SPF has raised with us, of which Mr Finnie will probably be aware, are about more access to information, such as statistical information and how a judgment can be made about what parity is, but such information can be provided through the Office for National Statistics and other bodies.

We are confident that the cost of a lighter, smaller body that is still able to ensure that all parties are represented around the table can be met within the current envelope. Any additional resources can be provided by us or by other bodies.

Thank you. Let us move on to the amendments to the Dangerous Dogs Act 1991.

I have a couple of questions on the Dangerous Dogs Act 1991.

You do not need to put a marker down—just ask your questions.

My first question is on the issue that was raised by Guide Dogs Scotland, which is that the definition of an “assistance dog” in the Equality Act 2010 is a bit broad. The suggestion is that it should be based on the definition in European Commission regulations. The issue is particularly about the fact that the dog should be trained by accredited member organisations of the International Guide Dog Federation or Assistance Dogs International. Do you have a view on that definition?

We are aware of the concerns that have been raised by Guide Dogs Scotland. We are in touch with the Department of Environment, Food and Rural Affairs officials who are leading on the issue, and our understanding is that guidance on what is and is not to be considered an assistance dog will be provided. We are confident that the amendment will provide sufficient clarity, and we will get advice from those who are currently negotiating with Guide Dogs Scotland. We are conscious of the issue and we are—“negotiating” is not the word—liaising with DEFRA.

My other question is on the Scottish Society for the Prevention of Cruelty to Animals’ view. As you know, the SSPCA is not at all keen on the legislation, but it is in favour of there being the ability to assess the character of the owner as well as the character of the dog in cases of exempted dogs or banned breeds. Do you favour the SSPCA’s suggestion that the scheme be redrawn so that an exempted dog could, instead of being destroyed, be rehomed with somebody who could care for it more appropriately?

We think that the change is necessary because of a court case south of the border. Although the ruling in that case would not be binding on a court in Scotland, it would doubtless be considered. We believe that the character of the owner should be taken into account, which seems to follow the point that has been made and, if the issue is the nature of the owner and not the dog, hopefully the new provisions will provide the desired flexibility.

This is about the inflexibility of the current legislation, which we drafted and which was appropriate at the time but which looks only at the dog. The court case to which I referred makes it clear that the nature of the owner and their activities should be considered. That seems to be the direction in which we should go. I believe that the new provisions will address the SSPCA’s concerns and provide appropriate flexibility for the courts.

Scotland is ahead of the game with the Control of Dogs (Scotland) Act 2010, which addresses the deed, not the breed, and considers responsible ownership. Perhaps the courts down south could pay a little bit of attention to that legislation. It was introduced by Alex Neil and pursued by me, but the bulk of the work on it was done by Alex Neil and I commend him for that.

Has any research been done in Scotland or the rest of the UK on the likely number of additional dogs that will be destroyed through taking into account the character of the owner?

Very little such research has been done. Jim Wilson may be able to talk about that.

The Scottish Government does not hold any statistics on the destruction of dogs. However, in the past 10 years, there have been nine applications relating to banned breeds of dog. Those related to section 1 banned dogs, but the courts decided that the dogs did not present a risk to public safety and the dog owners were, as long as the owner or keeper ensured that certain strict conditions were met, allowed to retain the dogs.

I presume that you are picking up on the SSPCA’s comments on destruction. It will be important to measure the impact of the provisions, going forward. We plan to liaise with Police Scotland and the National Dog Warden Association, and I intend to speak to Mike Flynn at the next meeting of the cross-party group on animal welfare, which will be held two weeks today. Although we do not have statistics on the destruction of dogs, the benefit of the Control of Dogs (Scotland) Act 2010 is that it is all about preventing dog attacks from happening in the first place. The legislation was introduced because there had been a 160 per cent increase in attacks over eight years and something had to be done.

We have conducted some high-level research to determine the number of dog control notices that have been served in Scotland in the first two years following the passage of the 2010 act. The figures that councils have supplied suggest that 235 notices have been served, and we are aware of a prosecution that occurred in Shetland. Although it is relatively early to look at the impact, the act has got off to a steady start.

10:15

Have you considered the concerns that have been voiced by Guide Dogs Scotland—on which we have information before us—about interpretation of the Equality Act 2010? It has stated that attacks on guide dogs are at an all-time high, and that from 2011 to 2013 there were approximately two such attacks a month. Was that issue considered when you spoke to Guide Dogs Scotland?

It is my understanding that Guide Dogs Scotland is asking for an amendment that would require the secretary of state to designate dog training organisations. We do not think that that is necessary, but—as the cabinet secretary has advised—we plan to ensure that guidance will be published.

As you will know, the issue of dangerous dogs is devolved. However, given that the Dangerous Dogs Act 1991 is UK Parliament legislation, we will ensure that, if there is a need for UK-wide guidance on amendments, Scottish viewpoints are taken into account in the formulation of that guidance.

While you are liaising with Westminster on that, perhaps you can ask—as a postscript—whether it is considering introducing legislation that is similar to the Control of Dogs (Scotland) Act, which, as you rightly say, intervenes early and covers attacks across the board. As we know, there are huge issues with regard to how prohibited breeds are defined.

I recently attended a dangerous dogs seminar in London at which the chair of the Environment, Food and Rural Affairs Committee made opening remarks. She likes the model that has been introduced in Scotland, under which we now have a dog control notice regime, and she had suggested to UK ministers that a similar model should be adopted for England.

So far, I have not seen any indications that a similar scheme will be introduced. The approach that has been taken appears to wrap up dog control issues as part of the legislation on antisocial behaviour. I have no strong views on that, but it appears that there are no signs of any movement to follow or to replicate the provisions that you introduced, convener.

That is rather a pity, but there we are.

We move on to witness protection, which is the third subject.

Police Scotland has voiced a concern regarding the possibility that the provisions will give protection to people who are involved in criminal feuds. I commend the cross-jurisdiction application of the provisions, which is desirable and positive. Is there any way to address the issue of giving to someone who is involved in a criminal feud protected-person status, which would require them to be maintained at the lifestyle level to which they are used? We want people to be protected.

That would have to be signed off by the chief constable. I doubt that the chief constable would, if they felt that somebody was under threat but that their lifestyle was not likely to change and therefore was not conducive to the scheme, be prepared to sign that off.

We have, as you know, Osman warnings and other instruments that are dealt with by the police. The changes to the current system will ensure that, ultimately, the police will have a say and will not require to give any support or assistance beyond what should be given to any citizen in terms of provision for public safety. We do not have any concerns in that regard, and I trust the chief constable’s common sense.

Does Colin Keir want to come in?

That was my question.

Right—I will let you in first next time. John Finnie did not know that he was pinching your question.

The extension is to be welcomed, in particular the provisions on forced marriages and honour-based violence. That is a good thing.

The Scottish Government’s note on the LCM, which discusses the financial implications, states that witness protection is “a demand led area” and that the cost is therefore difficult to ascertain. However, it notes that the new powers “are discretionary”. Will some cases be on a different footing from other people who are eligible to be covered by the witness protection scheme.

No. It is all one.

Thank you very much.

I, too, welcome the extension of the provisions to forced marriages and honour-based violence. It is a very good step forward that has been welcomed by Women’s Aid and others.

I recall that Victim Support Scotland said that the bill could be strengthened if there were a more robust framework with more information and support. Is the bill adequate, or could it be developed in the way that Victim Support Scotland has suggested?

The legislative basis and the appropriate guidance are there. I think that many of VSS’s concerns relate to the practical handling of matters, which I think requires not legislation but appropriate implementation.

It also seems to me that although we are not dealing with a large number of cases, the cases can be very varied. We could be talking about, for example, relocating a person who has a past record of criminality—albeit that it might be unrelated to the matter that has caused the understandable concern that was highlighted by Mr Finnie—or entirely innocent people. Moreover, people could be relocated within Scotland, within the United Kingdom or outwith the UK, on the basis of relationships that we have signed off with other countries. As a result, such things must be dealt with individually, and case by case.

Things might develop and matters might arise, but the fact is that the situation in Scotland is very limited. I do not think that the devil is in the legislation; instead, the difficulty is in the implementation. VSS’s points are well made and we must ensure that the people who look after witnesses’ interests consult those who look after their safety and relocation. I certainly assure the committee that we will be feeding such matters back to the chief constable because, ultimately, this will be dealt with as a police matter.

Here come the fatal last words—I do not think that members have any more questions. That usually causes a final little flurry—but not this time.

I thank the cabinet secretary for attending the meeting. At our next meeting on 17 September, we will hear from the Lord President and the Minister for Community Safety and Legal Affairs on the Tribunals (Scotland) Bill. We will also consider this LCM again and sign off our report at that meeting.

I suspend for a couple of minutes for a change of witnesses.

10:22 Meeting suspended.

10:24 On resuming—