Official Report 204KB pdf
Criminal Justice (Scotland) Bill: Stage 1
Members will remember that we thought that the best way to deal with our questions on the bill was to invite Scottish Executive officials to give evidence to the committee. With members' permission, I shall invite the witnesses to join us now. [Interruption.] I am advised that the witnesses are just coming.
Would it help if I ran through who the witnesses are?
I was going to ask you to do that. We are thrilled to have so many visitors.
Sorry, we are a bit mob-handed. I am responsible for managing the Criminal Justice (Scotland) Bill. I have an interest in the provisions on high-risk offenders in part 1 of the bill and I know that the committee has questions on some of the order-making powers in that part of the bill.
The bill breaks new ground, so we took great interest in it. Given the pressure of time, we thought that the best thing to do was to inform you in advance of the main questions that we had for you. We have categorised the questions according to the parts of the bill and their seriousness, depending on whether they relate to what you might think of as Friday-afternoon mistakes or to substantial differences from what we might have expected. I would like you to start by addressing the points on risk management plans, of which we notified you.
Are you content for me to run through the questions with which the committee provided us?
Yes, thank you. Is that fine with the committee?
The first question relates to section 6(1), which enables Scottish ministers to make an order prescribing new categories of offenders who might be eligible for a risk management plan. The memorandum that we sent the committee on the delegated powers in the bill explained that the bill provides that the risk management plan will be available initially only for offenders who get an order for lifelong restriction. The reason for that is that the ministers want to monitor how the risk management plan will work in practice, as it is a completely new and innovative arrangement. They want to ensure that the plan is as beneficial and effective as it is intended to be before they consider whether it should be extended to other categories of offender and what those categories should be.
We have great sympathy with that, because we want to see flexibility, proper monitoring and a sensible assessment made. Given that the provision is so fluid, why have you chosen that it should be subject to the negative procedure rather than the affirmative procedure?
We took the view in this case that the negative procedure was appropriate. As the memorandum explains, section 6(2) provides for measures of control over the exercise of the extension. Scottish ministers would be legally obliged to consult not only the risk management authority, but other authorities that they deemed appropriate before they could exercise the order-making power and extend risk management plans to other categories of offender.
I find the logic of that a wee bit strange. The committee might have a thing about negative procedure versus affirmative procedure, but expanding the categories of offender is quite an important decision. The justification that you seem to have for not using an affirmative procedure is that the Executive is consulting other people. I do not mean to suggest that the Parliament is the greatest body in the world, but it seems a bit odd that the justification for not placing the change before the Parliament is that the Executive is consulting other people.
I think that the committee is unanimous about that. We have tried to be consistent. We appreciate the need for flexibility, particularly when the Executive is cutting new ground, but the Parliament should be in on such dramatic changes. We want to put that on record.
We are happy to note the committee's views and we will certainly consider the matter in the light of your helpful comments.
Our fellow MSPs will hate us for making those comments, because we might create more work for them. On the other hand, perhaps people will better understand the bill and the reasons behind it. Although that is not the Subordinate Legislation Committee's job, we will in passing do everyone a good turn if we can.
The committee asked why we are not providing an order-making power in section 6(5). You considered that the requirement on the risk management authority to produce and publish the form of the risk management plan was quasi-legislative. We have taken the view that, as a public body, the risk management authority will be accountable, through its management statement, to Scottish ministers and in turn to the Scottish Parliament.
I am puzzled. It is maybe me, but I do not understand why there is a form. If the RMA has the authority to put the plan in a form and to decide on the type of form, why does the statute bother with that? If the legislation said that the risk management plan set out the measures to be taken and no more, it would have to be put in a form, because it cannot be formless. It would have to be laid out in some format. What is behind the idea of having a statutory requirement for it to be in a form? I cannot get my mind round the general idea.
Given that the risk management and risk assessment of offenders would be done in co-operation with the lead authorities, we wanted to make it clear how the process would proceed and that the risk management plan would be enshrined in statute.
Does it matter?
It puzzles me, but it is maybe just me.
We are a little puzzled. We think that a risk management plan would have to be produced, which could be called a risk management form, so why does that appear in the legislation?
I am not going to die in a ditch over it.
If anything, we have perhaps been over-prescriptive in the legislation.
Never mind. You win one, you lose some. We have agreed that it is probably overwriting.
I understand that the committee is concerned because of the novelty of the scheme. Our thinking was that the primary legislation would establish the right to make a victim statement. The policy intention is to pilot victim statements in three areas initially to test the impact of and arrangements for the scheme.
I understand that reasoning. Perhaps some of the lawyers on the committee can tell me whether there is any need for the Parliament to be concerned about where the pilots are going to be.
I find that hard to imagine. Brian Fitzpatrick suggests that there could be a resource issue.
That is what I thought.
It is a fair point, but if the Executive states that it would like to run the pilot in Edinburgh, Falkirk, or wherever, it seems unlikely that the Parliament would disagree with that.
We intend to resource the pilots. We recognise that certain courts are under huge pressure. That is why we are consulting so carefully with the Crown Office on the location for the pilot sites.
There is a tension between a pilot and a roll-out.
I accept that.
Is this a pilot or is it a roll-out?
The legislation allows for both. That is why the classes of courts are to be prescribed.
What mechanism changes it from being a pilot to a roll-out? When is it decided that we are satisfied with the pilot and that everyone should have the scheme?
We propose to evaluate from the outset. An extension of the scheme beyond the pilots will be subject to that evaluation, which will be published. I accept that there is a tension between establishing the pilots and rolling out the scheme.
What would happen if the evaluation of the pilots were controversial?
We would have to consider the further roll-out of the scheme.
But there would be no parliamentary locus in order to inform and direct that consideration of the roll-out of the scheme. It would be in the hands of the Executive to decide whether the evaluation was a yea, a nay or a maybe.
Or different in each area.
One of the reasons for piloting the scheme is to see which of the different arrangements works best. We might not have exactly the same arrangements in each of the pilot areas, so that we can test different administrative arrangements. We will use the evaluation of the pilots to consider the administrative arrangements and how they impact on victims and on the court process.
I must admit that to begin with I thought that, to use Gordon Jackson's phrase, I would not die in a ditch over the matter. However, I am beginning to think that the power is a wide one and that our original query about whether an affirmative resolution would be a better idea was right.
I am not—
It is okay. You are dead in a ditch.
As a non-lawyer—
That is the best qualification.
I think that an affirmative instrument may be more appropriate. Perhaps I did not hear it, but I did not think that Ms Knox answered my colleague Brian Fitzpatrick's question about how the evaluation would be judged if it were controversial. Would it be judged administratively by the Executive or the Executive's officers, or does Parliament have a role? I think that the affirmative procedure would give Parliament a role. Is that right?
Yes.
There may be two issues. The primary legislation provides for the prescription of certain categories of court where the pilots are to take place or that will subsequently become part of the roll-out of the scheme. The way in which I envisage the powers in the bill operating is that each time ministers want to bring another class of court on stream, an order would be put before the Parliament.
Does that not go back to Bill Butler's point about the reason for the provision coming under the affirmative procedure? Let us say that the pilot had been carried out in two places and the Parliament did not fancy it going any further, the mechanism for reviewing the roll-out is the review of the instruments that roll out the pilot.
I think that I speak for the committee in saying that this is another instance where the affirmative procedure would be more suitable.
I am happy to take that back for further consideration.
Can I ask about the thinking behind the other subsection? Why is there a power to change the age of a child?
I intended dealing with those separately. Section 14(2) relates to extending the list of offences and there was a query in relation to section 14(12).
Perhaps you could address that now.
It is largely part of the same thinking. We have consulted on the offences to be included in the scheme and we propose a limited scheme. That is not just for the purpose of the pilots, but for any roll-out. If the scheme covered all offences it would be too large to handle. At this stage we do not know how many people will want to opt into the scheme and what its administrative burden will be.
I am not sure about that. That is the interface of the technical side and the policy intention.
Can you repeat that list?
The list would include crimes of violence, crimes of indecency, domestic housebreaking and racial offences. We were asked to consider the inclusion of domestic violence in the pilots, but that might cause some difficulty because such cases are often breaches of the peace. We felt that there would be some difficulty managing the pilots and including domestic violence.
I may be out of step here, but I think that once the principle of victim impact statements has been accepted by Parliament, the question of which offences would be included is comparatively minor.
That is our thinking.
My instinct—I am just thinking as I go along—is that there are few other crimes apart from those listed that have victims.
We have not mentioned road traffic offences.
That is perhaps another for consideration.
Running people down?
That is one area. If someone hits someone else in some way it is a crime of violence. There are not many cases outside those mentioned in which there is a victim in the sense that we use the word. The scope is fairly wide as it is, and I suspect that there will be few changes to be made.
It is the offering of an opportunity, rather than the necessity of the uptake.
Absolutely.
I would be happy with the negative procedure.
We are no bothered.
My colleague Mr Jackson did not mean that we are no bothered, he meant that the committee is not disturbed by the subordinate legislation being subject to the negative procedure.
The committee raised a question in relation to section 14(12). We accept that we are seeking a power to amend primary legislation with regard to the age of children. That issue arose from the consultation exercise. We had intended to pilot the scheme for adults only—we felt that we did not want to subject children to a trial process. The consultation respondents made a strong case for including younger children. We decided to include children over 14 as a reasonable starting point with the intention to lower the age at which children would be included, according to the experience of the pilots. Organisations that represent children's needs have made strong arguments to lower the age at least to 12. Again, we felt that if the victim statement were accepted in principle for children over 14, and if we were responding to children's organisations' concerns about reducing it further, the Parliament would not consider that it needed to debate the issue.
You suggest that the Parliament would not feel it necessary to debate lowering the age at which someone can give a victim statement, but I think that it might. However, that is a judgment call.
I cannot read the bill properly. Section 14(12) allows amendment of subsection (6)(b)(ii), but subsection (6)(b)(ii) seems to deal with a person who dies as a child.
No. That subsection is about the age at which a child can make a victim statement.
It is at the top of page 11 of the bill.
That is my fault. I was reading the wrong bit.
It is a very big deal. I think that the Parliament would be very interested in that.
I agree that it does not matter which court has the pilot—it does not matter to me whether it is Falkirk or Tighnabruaich—but the age at which someone is a victim is a real issue. Despite what children's welfare people say, there is a question about whether it is appropriate to put that responsibility or pressure on a child of 12 or 14.
That is particularly so if the parents disagree about whether that is acceptable—there could be conflict between the child and his or her parents.
It is a serious issue. If a child of 14 gets a letter saying that he or she can write a statement for the judge to consider and the parents do not think that the child should do that, that could cause problems. It is a big step to extend the scheme to 12 and 14-year-olds. It is not an administrative matter.
It is one of the big proposed changes to the bill.
A point that militates against that is the notion that the victim statement is an opportunity—it is not something that a victim is required to do. It could become a burden in the household environment, particularly in the sort of situations that one can imagine that opportunity would give rise to. However, it is an opportunity, rather than a requirement.
Indeed.
Often, having the opportunity is in itself the burden. That is why some victims organisations have never wanted victims even to have the right formally to take part in sentencing. Those organisations realise that even giving victims that opportunity puts an amazing responsibility on them.
If the qualifying age were 12, for example, that would be the age at which one would be entitled to instruct a solicitor on one's behalf or to enter into contracts that one expected to be honoured. It would be the age at which one would have many of the hallmarks of adult legal capacity.
Those are good arguments for your being happy to vote for changing the qualifying age to 12, but they are not good arguments for not having the Parliament consider the matter.
The witnesses will realise that members have been discussing the issue with witnesses present so that we can properly explore their thinking. We will continue the discussion afterwards.
Our thinking on that section was also perhaps led by the fact that the provision does not introduce a new system. The system has been in operation administratively, but we seek through legislation to formalise the current arrangements. The offences that would be included initially are those that are subject to the current arrangements. Those offences are serious violent and sexual offences. I can read out the full list, if that would be helpful.
Do members have views on whether the provision is technical or administrative or on whether its scope is being extended to the point at which members would want the Parliament to discuss it? It appears that members have no views on the matter.
We now move to consideration of section 15(5)(a).
The same arguments apply in terms of amending the length of sentence, which is currently four years and over. In seeking to extend the scheme, we would be looking, over time, to reduce that sentence.
Do members have any questions on that?
Could the power be used to increase the length of sentences?
It could. However, ministers are committed to extending the scheme to all victims who choose to participate. Therefore, increasing the length of sentences would be totally contrary to the commitment that was given to Parliament.
What I am getting at is this: if there is a change of policy in future, could a future Executive seek to defeat the purposes of the bill?
Power, as Mrs Knox said, could be exercised to restrict the number of victims who would be eligible under the provisions.
We will note that and have a word about it afterwards.
No. That section raises a different point.
Sorry?
I thought that you said that section 15(5)(b) was the same point; it is not.
No.
I appreciate the committee's concern about section 15(5)(b). We were so focused on that section that we were not looking for any major amendment to the list. The scheme is entirely focused on giving information about the release of offenders either on completion of their sentence or on interim liberation. We included the power in section 15(5)(b) to allow for the possibility of minor tweaking of the arrangements, rather than anything major. For example, if under the current arrangements a prisoner has his sentence reduced from six years—a sentence that would bring the prisoner into the scheme—to three years, the administrator would inform the victim that the offender was no longer eligible for inclusion in the scheme.
That is what gave rise to our concern.
Do I take it, therefore, that if we said that changes to that provision should be subject to affirmative procedure, you would agree with us?
We would certainly consider that.
The power in section 15(5)(b) is a big one. I have no doubt that it was included in good faith for tweaking purposes. However, victims could ultimately be told all kinds of things; it might be a matter of great public debate whether they should be told such things. It is, potentially, not just an administrative matter but one that is at the heart of the scheme.
The committee recommends the use of the affirmative procedure, at the least, for amendments made according to section 15(5)(b).
I want to say a few words on the committee's points eight and nine on sections 30 and 31, because I think that the same point arises in relation to both sections. We note that the committee accepts the Executive's position that the exercise of the power in those sections would not in general change the law fundamentally. That is also our view. The committee went on to note that it is also possible that any change to the specified conditions would not be without effect. We also agree with that. It is, in essence, a matter of judgment as to how substantial or minor that effect will be.
Does the provision have a minimal—
If I am being honest, I must say that the provision makes no sense to me at all. Mr Garland said that the only conditions that it makes sense to continue include the condition that the prisoner is of good behaviour and keeps the peace, but the person affected would be in the jail, so what would the penalty be if they did not keep the peace? Surely they would be subject to normal prison discipline. Someone who was out on licence would have to be of good behaviour and keep the peace. If they breached those licence conditions, they would get shoved back into the jail. However, we are talking about someone who is in the jail. I am baffled.
The sanction for breach of a licence condition is recall to jail and revocation of the licence. If the condition that the person should be of good behaviour and keep the peace is kept extant, but the person is in prison, it will still be open to Scottish ministers, on the recommendation of the Parole Board, to revoke that person's licence. That would mean that the person would be in prison lawfully until the revoked licence expired. That might mean—although it might not—that the person would be in prison for much longer than they would be for the reason for which they were in prison at the time when they committed the breach of the peace. The provision gives Scottish ministers—
A condition may not have been continued for someone who is under licence and who then gets lifted for any crime and taken into jail. He may be of bad behaviour in the jail, but are you seriously telling me that ministers could not revoke a licence because the condition was not continued?
If the condition to be of good behaviour and to keep the peace were suspended, Scottish ministers would no longer have the power to revoke the licence. The reason for continuing both that condition and the no-contact condition is precisely to allow Scottish ministers to retain that power.
The fact that the person is back in the jail would have given Scottish ministers the power to revoke the licence anyway. I am trying to think of a situation in which ministers would not be able to revoke the licence. In my experience, ministers can revoke licences at the drop of a hat, as a general rule.
Was the idea somehow that, if someone found themselves back in prison, but—
A person could not end up back in prison without their licence having been revoked.
Yes, unless the reason for the person's being put in prison was absolutely unconnected with the reason for their being on licence. In that case, one would not militate against the other. A person can serve time in prison for a relatively minor crime, but when they have served their time they will still be on licence when they come out.
Yes.
The person will be on licence unless the licence is revoked or unless the man has been in the High Court and the sheriff sends the man back to the High Court for revocation of the licence under section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. In practice, when someone behaves badly, their licence is revoked. By all means, we should keep the pardon, but the other measures seem like gobbledegook to me.
A person would not be jailed unless they had behaved badly.
I must declare an interest at this point.
It is an Anderson point.
I do not understand the issue.
People who are on licence go back to jail, for example, when they are caught in the street doing something. At that point, their licence is not revoked; they are in jail only for what they have done.
Then they work off that sentence.
The Executive is saying that we must keep that person on licence when he is in jail so that the person will be of good behaviour and will keep the peace. However, even without the new statute, if a man became a prison rioter, his licence could be revoked.
At present, when someone who has a licence is in prison for whatever reason, all the conditions remain outstanding, which means that it is possible to revoke the licence for breach of any of the conditions of the licence. The majority of the conditions will either be inappropriate or impossible for the person to fulfil, such as reporting to a supervising officer and taking drug counselling, and to travel outside Great Britain would be impossible. However, somebody could breach the conditions of being of good behaviour and keeping the peace even in prison. Equally, there might be a condition that the person is not to contact either a named person or a certain class of people—for example, children under 16—without the consent of the supervising officer, in which case the person could contact those people by telephone or letter from within the jail. Ministers wish to retain the power to revoke the licence in such cases. The order-making power is simply to enable Scottish ministers to maintain in force appropriate conditions that it is possible to breach. Such conditions should remain in force and be capable of giving rise to revocation of a licence if they are breached.
You say that, at present, although all the conditions remain in force, it would be unjust of a senior parole officer to revoke a licence for breach of certain conditions. Does that cause any practical difficulty? I have never heard of any practical difficulty.
It appears to be a belt-and-braces approach.
Is the change being made only because it is a nice idea?
I am not aware of any problems. Clearly, if someone is in prison, the fact that they have not reported to their supervising officer will not cause revocation of their licence. The measure is allied to the fact that the Parole Board for Scotland, under the amendments to existing legislation that are in the bill, will be able to recommend, almost to the total exclusion of ministers, the conditions to be included in a licence. Scottish ministers recognise that it makes sense to retain certain conditions in full effect when the subject of the licence is in prison.
Does the present system of retaining all the conditions cause any problems?
I am not aware of any problems.
I am glad that we had that discussion because I understand the issue now. Like Gordon Jackson, I do not know the reason for the measure. I am sure that there must be a good reason for it, but as it does not impinge greatly on anyone's rights or change the policy intention, we will move on.
I was not trying to be difficult; I wanted to understand what we are doing.
Thank you. We move to section 56 on consideration of registration for criminal records purposes.
The section relates to protection of national health service patients. Until recently, general practitioners, dentists, pharmacists and opticians had to be on the health board list. That meant that for minor offences they could be referred to a disciplinary committee, which has the power to warn or fine them. In serious cases, they could be referred to the NHS tribunal, which has the power to expel them from the national health service. The Community Care and Health (Scotland) Act 2002 provides powers that require doctors who assist general practitioners also to have their names entered on new lists. As part of that process, enhanced criminal record certificates should be available to the primary care trust that considers an application. Consideration is being given to the idea that dentists, pharmacists and opticians who assist members of those professions that are already on the list should also be required to join new lists. We think that negative procedure should apply to any amendment for the purposes of providing the enhanced criminal records certificate.
I am looking to see whether Gordon Jackson is dying in a ditch. Apparently, he is not.
The Executive has noted the committee's points regarding section 65. We note that the merits of the order-making power did not appear to be disputed and that the committee has been persuaded of the need for such a provision. The question is whether the powers ought to be exercised through affirmative or negative resolution. The Executive took the view that the powers are minor and subsidiary and that the exercise of the power under section 65(2) is limited and prescribed by the restrictions in section 65(1). That is why the Executive took the view that negative procedure would be appropriate.
That sounds fair.
That seems to be entirely reasonable. Thank you for attending.
Did we not agree that in relation to section 15(5)(b)?
We did not agree anything in relation to section 15(5)(b).
I would prefer orders under section 15(5)(a) to be subject to the affirmative procedure. The point that I made—to which the witnesses responded—was that, if the Executive changed its policy, it could override the provision in the bill by introducing subordinate legislation under the negative procedure. It could extend the period of imprisonment that qualifies a victim to receive information about their assailant to exclude large numbers of prisoners.
If a Tory-dominated Scottish Executive were malicious, malign or bonkers enough to want to do that—
A Labour Administration would be more likely to want to do it.
The SNP could also do it. I ask Brian Fitzpatrick to continue.
I will return to reality. If an Administration were determined to override the legislation, it could find a parliamentary opportunity for doing that.
We have often come across provisions that could be used to knacker legislation. If a Government decides to repeal legislation, it will do so. I am worried by changes that are made to legislation by negative instrument and that have a substantive impact on such legislation, even if they do not defeat its purpose. Murdo Fraser's concerns are as legitimate as those of anyone else. I do not share them, but I have other concerns that he may not have.
The drafting of legislation is supposed to make it as watertight as possible. To say—as Brian Fitzpatrick said, and as we all automatically think—that no Government would take a particular step is to make a political judgment, which we are not supposed to do.
I am not saying that no Government would take a particular step. However, we should not assume that it could do so without controversy. Members appear to be suggesting that orders should not be made under the negative procedure because an Administration might use those to knacker legislation. If an Administration wants to override legislation, it will find a way of doing that.
Would that not make quite a substantial change and is that not reason enough to use affirmative procedure?
Absolutely. I am not agreeing with Murdo Fraser on the basis that I think that the provision will be used to knacker the bill, but I agree that it is as substantive a change as some of the others that we want to be subject to affirmative procedure.
I do not see why we do not go with affirmative procedure. Brian Fitzpatrick is saying that we should not be dying in a ditch. I do not want—and I employ legal terminology here—to knacker the bill, but I do not think that using affirmative procedure would be wildly excessive. We should ask the Executive to consider that.
Well put.
He is good. We are all content with that. We should send a note to the Executive to that effect.
Excelente.
Have we dealt with section 15(5)(b)?
I think so. We agreed to recommend the affirmative procedure.
That is fine.
I got the impression that the Executive representatives—
They do not mind.