The next item of business is stage 3 consideration of the Community Justice (Scotland) Bill. In dealing with the amendments, members should have: the bill as amended at stage 2; the marshalled list; and the groupings. The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon, and the voting period for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who want to speak in the debate on any group of amendments should press their request-to-speak button as soon as possible after I call the group.
Members should be aware that we are very tight for time, so if you could limit yourselves to the essential matters when you rise to speak to amendments, that will be a great help—otherwise you will be here for much longer.
I refer members to the marshalled list of amendments.
Section 1—Meaning of “community justice”
Amendment 1, in the name of the minister, is grouped with amendments 2 to 9, 26, 27, 10 and 11.
The amendments in this group refine the meaning of “community justice”. It is clear to me that we need to take a person-centred approach to improving outcomes for community justice, which means that there should be the widest possible scope with regard to the support that is offered to people who come into contact with the criminal justice system.
Amendment 2 will amend the definition of “community justice” to include helping people to access services that they will need on release from prison. As the new definition will include healthcare, subsection (2ZA) of section 1 will no longer be necessary and will be removed by amendment 7.
Amendment 1 will insert the word “relevant” before “general services” in the meaning of “community justice” in section 1(1), and amendment 6 will make the same change to section 1(2)(c)(ii). In consequence of those amendments, amendment 8 will make the same change to the definition of “general services” in section 1A.
Amendment 3, also in my name, will remove paragraph (e) from section 1(1). Paragraph (e) was inserted at stage 2 and amended the meaning of “community justice” to include
“designing, managing and arranging general services for persons identified as at serious risk of first time offending”.
I fully understand the good intention behind the provision and I thank Alison McInnes for highlighting an important matter. However, the bill does not cover primary prevention—that is, stopping people from offending in the first place. Primary prevention is being taken forward effectively by this Government through a range of other policies, for example on early years intervention, raising educational attainment, tackling youth unemployment, health and housing. Furthermore, we have a specific youth justice strategy, and good work is being done on diversion of young people from serious and organised crime and substance abuse.
There are also practical issues with the wording of paragraph (e) as inserted by Alison McInnes’s amendment, given the difficulties that are attached to assessing risk and identifying people who are at risk without stigmatising individuals. Any such system would have to be human rights compliant. I therefore urge the Parliament to support my amendment 3.
Amendment 4 will remove paragraph (f) from section 1(1). The paragraph, which was also inserted at stage 2, amended the definition of “community justice” to include managing and supporting persons who are covered by the definition
“in ways which take into account the safety of other persons in the community, including victims of offences and their families.”
I thank Margaret McDougall for highlighting the important issue of safety, and I reassure the Parliament that this Scottish Government is committed to reducing reoffending and the harm that it causes to individuals, families and communities. I very much recognise the concerns of victims about justice-related issues, but I think that the Victims and Witnesses (Scotland) Act 2014, rather than the bill, is the relevant legislation through which to address such concerns. To reassure the Parliament, I can say that we have worked with Margaret McDougall to ensure that there will be appropriate references to the needs of victims and their families elsewhere in the bill. Group 3 contains amendments in that regard.
Margaret McDougall’s stage 2 amendment also sought to bring within the scope of community justice such activity as is directed not at reducing future offending but at managing the risks to public safety that arise from having people with offending backgrounds in the community. That is not appropriate in this bill. I therefore urge members to support my amendment 4.
Amendment 5 will amend section 1(2)(c) so that the meaning of “supporting” in the definition of “community justice” includes helping to access “emotional and practical support”, which references a provision that was inserted by Alison McInnes at stage 2.
Amendments 26 and 27 seek to amend the definition of “general services” in section 1A. I understand the reason for listing appropriate services—the approach was entirely well intentioned—but I want to refine the list that was added at stage 2 by Alison McInnes. I have discussed with Alison McInnes the reason why refinement is required.
Amendment 26 will remove “looked-after” from paragraph (d) of the definition in section 1A, so that it refers to services and support provided to all children rather than just looked-after children. The approach avoids making an implied link between looked-after children and offending behaviour. Some looked-after children do go on to offend, but there is no automatic link; the change avoids any such inference in the legislation.
Amendment 27 will amend paragraph (e) of the definition, building on the existing reference to alcohol and drug issues and drawing them into the broader spectrum of physical and mental health services. The wording reflects the fact that many individuals who are in contact with relevant services are no longer dependent on substances and might be in recovery.
In a similar way, I have sought to cover
“physical and emotional childhood and adolescent trauma”
as set out in existing paragraph (f), by reference to “physical or mental health”, which will be in amended paragraph (e). Proposed new paragraph (f) will provide a more general reference to “social welfare”, in recognition of the important role of social services in promoting the welfare of individuals in our communities. Proposed new paragraph (g) will make general provision for
“any other matter which does or may affect the likelihood of future offending by persons falling within”
the definition of “community justice”. That will ensure that the definition of “general services” is not limited to the services that are listed in paragraphs (a) to (f).
Amendment 9 is consequential, in that it will remove wording from section 1A that was added at stage 2, which will no longer be appropriate in light of the refinement of the definition of “general services” by amendments 26 and 27.
Finally, amendments 10 and 11 will amend section 1A(4), which sets out what, in the definition of “community justice”, is meant by a “relevant finding”, to reflect that in certain circumstances an offence can be committed by omitting to do an act as well as by committing an act.
I move amendment 1.
I will speak to amendments 3, 7, 26 and 27.
As the minister said, amendment 3 will remove a provision that I inserted by amendment at stage 2, which sought to focus attention on first-time offending. The risks of offending are clear and well documented, and I thought that my provision would ensure that services were not deflected from the area.
Nevertheless, and with reluctance, I accept the minister’s arguments on amendment 3, and I recognise that, as he said, there are a number of statutory requirements, in the context of early years, youth, health and housing, to tackle first-time offending. However, I seek the minister’s assurance that there will be clear links between community justice Scotland and other providers.
Amendment 7 will widen the provision of throughcare, which is helpful, although it will remove a reference to “continuity of health care”. I stress to the minister that continuity is important, and although I will agree to amendment 7 I hope that the spirit of what I intended by section 1(2ZA) will be carried forward.
Amendments 26 and 27 will amend the list of general services. When, at stage 2, I proposed the list of services that should be provided, I accepted that the minister might well want to amend the list slightly to make it comprehensive. I am content that he should do so.
I oppose amendment 3. In the Scottish Government’s 2014 consultation, “Future Model for Community Justice in Scotland”, the definition of “community justice” was given as:
“The collection of agencies and services in Scotland that individually and in partnership work to manage offenders, prevent offending and reduce reoffending and the harm that it causes, to promote social inclusion, citizenship and desistance.”
However, in the bill as introduced the definition of community justice in section 1 no longer referred to the prevention of offending, which represented a major change. That was amended at stage 2 in response to widespread criticism of the omission from a number of organisations.
Police Scotland said:
“to be successful it is necessary to take a whole-system approach; it needs to be right from start to finish. That leads to the emphasis on prevention and early intervention.”—[Official Report, Justice Committee, 15 September 2015; c 44.]
Sacro said:
“there is no statement regarding prevention, public safety or community safety.”
Turning Point Scotland said:
“It is ... disappointing that the bill does not explicitly direct planning at both national and local levels to consider prevention especially within the wider context of the community planning process.”
Barnardo’s said:
“If we are to take a truly preventative approach to community justice, we must start at the beginning and focus on how to keep people out of the justice system and within their communities.”
Victim Support Scotland said:
“the definition does not allow for a greater focus on prevention and early intervention in line with the recommendations of the Christie Commission.”
I consider it a retrograde step and an opportunity lost that today the minister is seeking again to remove prevention and early intervention from the bill’s provisions. It is for that reason that the Scottish Conservatives oppose amendment 3.
I had concerns when I first looked at the Government amendments, but given that Alison McInnes, who brought the amendments to the committee in the first place, has been persuaded to accept them, we are prepared to accept them too.
However, I seek assurances from the minister that there will be sufficient focus on desistance. Ultimately, what every victim wants is that what they suffered does not happen to somebody else. Therefore, desistance and focusing on preventing people from becoming involved in the criminal justice system in the first place have to be our priority. I seek the minister’s reassurance that, if they are not on the face of the bill, that does not mean there will be any lack of focus on those issues in general policy.
I welcome the comments of Alison McInnes and Elaine Murray. I did not hear anything in Margaret Mitchell’s comments about the financial implications of the aspect she raised. I do not know whether she has any views on that, but we did not hear any.
In response to Alison McInnes and Elaine Murray, I put on record my acceptance of the need for us to provide assurances to members, and I welcome their agreement to amendment 3.
In developing the national strategy and the performance framework, it is important that, as far as possible, we reflect the linkages between what we are doing in the secondary and tertiary prevention that the bill covers and the existing strategies for primary prevention, such as the youth justice strategy and other measures including early years intervention.
I entirely agree with Elaine Murray that desistance is a priority. I commend the committee for its persuasion in including within the definition of community justice the point of arrest—although, of course, people are not yet offenders at that point, as they are still innocent until proven guilty. Through that change, we are in a position perhaps to prevent escalation of offending behaviour between the point at which someone comes formally into the purview of the courts and the point at which a disposal is determined. I hope that that is sufficient reassurance.
I reiterate that we will seek to make very explicit the linkages between the work that we are doing within the national strategy, the work of community justice Scotland and the existing strategies that cover primary prevention. I hope that that reassures members.
I regret that the Conservatives are not prepared to support amendment 3, but I acknowledge the points that Margaret Mitchell made and know that they are ones that she stands by.
Amendment 1 agreed to.
Amendment 2 moved—[Paul Wheelhouse]—and agreed to.
Amendment 3 moved—[Paul Wheelhouse].
The question is, that amendment 3 be agreed to. Are we agreed?
Members: No.
There will be a division. As this is the first division, I suspend the meeting for five minutes.
14:15 Meeting suspended.
We will now proceed with the division on amendment 3.
For
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brennan, Lesley (North East Scotland) (Lab)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Renfrewshire South) (Lab)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hilton, Cara (Dunfermline) (Lab)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kelly, James (Rutherglen) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow Pollok) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Malik, Hanzala (Glasgow) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McCulloch, Margaret (Central Scotland) (Lab)
McDonald, Mark (Aberdeen Donside) (SNP)
McDougall, Margaret (West Scotland) (Lab)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMillan, Stuart (West Scotland) (SNP)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Scott, Tavish (Shetland Islands) (LD)
Smith, Drew (Glasgow) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
Yousaf, Humza (Glasgow) (SNP)
Against
Brown, Gavin (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Davidson, Ruth (Glasgow) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Johnstone, Alex (North East Scotland) (Con)
Lamont, John (Ettrick, Roxburgh and Berwickshire) (Con)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
The result of the division is: For 99, Against 10, Abstentions 0.
Amendment 3 agreed to.
Amendments 4 to 7 moved—[Paul Wheelhouse]—and agreed to.
Section 1A—Interpretation of section 1
Amendments 8, 9, 26, 27, 10 and 11 moved—[Paul Wheelhouse]—and agreed to.
Section 12A—Third sector bodies involved in community justice
We move to the second group of amendments. Amendment 12, in the name of the minister, is grouped with amendments 13 and 22 to 24.
My amendments 12 and 13 amend section 12A, which sets out what is meant by a third sector body involved in community justice. The amendments add to the definition of the third sector in section 12A by making clear what is meant by community justice services that are to be provided by third sector bodies that fall within that definition.
For the purposes of section 12A, community justice services are services that are provided to people covered by the definition of community justice in section 1(1)—
Forgive me, minister. Can I seek a little quiet so that the minister can make his remarks, please?
Thank you, Presiding Officer.
For the purposes of section 12A, community justice services are services that are provided to people covered by the definition of community justice in section 1(1)(b) and (d) and which involve managing and supporting those people with a view to eliminating or reducing reoffending. Community justice services are also to include services that prepare persons for release from prison or detention.
Amendments 22 to 24 make it clear that the services in which community justice Scotland will have a commissioning role are those that are provided to people who are covered by the definition of community justice. That is to contrast with the services that community justice Scotland will provide directly, which will be solely in respect of training and education for organisations that have a role in community justice.
Amendments 22 to 24 simply clarify that community justice Scotland will not provide services to the people who are covered by the definition of community justice. They underline the policy position that community justice Scotland’s main role in commissioning will be to work with partners and the third sector to develop and take forward a strategic approach to commissioning. That will ensure an evidence-led and co-ordinated long-term approach to commissioning for community justice in Scotland.
I move amendment 12.
Amendment 12 agreed to.
We move to group 3. Amendment 28, in the name of Margaret McDougall, is grouped with amendment 29.
I will give some background to amendment 29. In section 1, the reference to
“victims of offences and their families”
is not the same as a reference to third sector organisations that support victims and their families. It cannot be assumed that a single reference to victims will create enough of an imperative to ensure that third sector organisations that work to support victims—to ensure that their voices are heard at the local and national levels by community justice Scotland, community justice partners, community planning partnerships and those within the architecture of community justice generally—will be fully engaged in the planning and decision-making processes that are intended to take victims’ safety into account.
It is vital that organisations that support victims are named in the bill as third sector bodies that must be consulted, and my amendments provide a lever to insist that that be done. The minister repeatedly mentioned victims during the stage 1 debate, but simply inserting the words
“such third sector bodies involved in community justice”
through various amendments and then defining
“A third sector body ... involved in community justice”
as one that
“represents or promotes ... other persons who are or may be affected by community justice”
does not adequately include organisations that support victims, or indeed victims individually or collectively. A blanket reference to “the third sector” does not explicitly include victims and victims organisations. The bill places a duty on various persons to consult
“third sector bodies involved in community justice”,
but it also gives them an opportunity to limit which third sector bodies they consult, as it qualifies the duty with the wording
“such third sector bodies involved in community justice as it considers appropriate”.
Unless victims organisations are explicitly mentioned, as they are under my amendment 29, the bill will give those with the duty a get-out clause to ignore victims organisations on the ground that they are not appropriate, or to use that ground after the event as an excuse to justify a lack of consultation.
Amendments 28 and 29 include that reference, thus making explicit and clear in the various planning and monitoring duties the obligation to have local structures and arrangements that involve both victims of crime and the organisations that support them.
Amendment 28 is essentially a technical amendment. I thank the minister for working with me to make amendments 28 and 29 acceptable to all.
I move amendment 28.
I welcome the engagement with Margaret McDougall and am grateful to her for lodging her amendments. I hope that they are acceptable to the Parliament. The point that she raises about the important role of victims and their families is well recognised and I am grateful for her input at this time.
Amendment 28 agreed to.
Amendment 13 moved—[Paul Wheelhouse]—and agreed to.
Amendment 29 moved—[Margaret McDougall]—and agreed to.
Section 13—National strategy in relation to community justice
We move to group 4. Amendment 14, in the name of the minister, is grouped with amendments 15, 16, 18 and 19.
My amendment 14 seeks to remove paragraph (c) from section 13(2), which provides that the national strategy in relation to community justice
“may contain such material in relation to community justice as the Scottish Ministers consider appropriate, including in particular—
(a) a statement of the aims of community justice,
(b) action that the Scottish Ministers propose to take, or consider that others should take, to achieve, or support the achievement of, those aims”.
Paragraph (c), which was inserted at stage 2, amends the list of the material that the Scottish ministers may consider appropriate for inclusion in the national strategy for community justice to include information about action that ministers are taking or propose that others take in relation to early intervention, diversion from prosecution and youth offending. I understand that the intention behind the amendment at stage 2 was to ensure that the national strategy covers early intervention to prevent offending and the other items that are listed.
At stage 2, I lodged amendments to broaden the definition of community justice to cover persons who have been arrested, which will ensure that support can be provided to persons at an earlier stage than the point of conviction. The definition also covers those who are 16 or 17 and are subject to a compulsory supervision order on the ground that they have committed an offence. Therefore, those persons are covered by the definition of community justice and will be reflected in the national strategy.
However, it is important to note that the bill is about planning for community justice for persons who have been, among other things, given an alternative to prosecution, such as diversion. Let me be clear that the bill does not provide for diversion. That is entirely a matter for the procurator fiscal, and it would not be appropriate for ministers to propose to take action, or to propose action that the procurator fiscal should take, in relation to diversion from prosecution.
14:30I said at stage 2 that the drive in community justice to reduce re-offending was part of our wider approach to promoting social justice and tackling inequality, which includes action to improve early years experiences, to raise educational attainment for all and to continue to promote the whole-systems approach to youth justice.
I gave the Justice Committee my assurance that the national strategy for community justice would, naturally, link with a range of Scottish Government strategies to ensure a joined-up approach. I reiterate that point from the debate on an earlier group. However, for the purposes of the bill, community justice stops short of including the matters that are described in paragraph (c) of section 13(2). Although they are clearly linked to community justice, the strategy is about community justice and not those matters.
For those reasons, my amendment 14 seeks to remove paragraph (c) of section 13(2) so that the content of the national strategy will be informed by the broader definition of community justice, which references diversion, early intervention and matters relating to youth justice. I urge members to support the amendment, with the reassurance that the linkages between primary prevention and the secondary and tertiary prevention that the bill covers will be established in guidance alongside the bill.
My amendment 15 seeks to amend paragraph (d) of section 13(2), which was inserted at stage 2 to specify that the strategy might include action that the Scottish ministers consider that others should take to facilitate access to housing services for people on release from serving custodial sentences.
I fully recognise that suitable housing as well as support to sustain a tenancy or owner occupation, where relevant, are vital to provide stability to people who have a history of offending. However, I also believe that access to other services—such as healthcare, welfare and employment assistance, to name but a few—is also vital in supporting people to desist from committing further offences. Therefore, amendment 15 replaces the specific reference to “housing services” in section 13(2)(d) with a reference to “relevant general services”. I have discussed that with Alison McInnes in advance of the debate.
Amendment 15 would mean that the national strategy may include material that relates to action that should be taken to facilitate access to relevant general services rather than just housing services. My amendment 16 then makes it clear that the term “relevant general services” has the same meaning as in section 1. As members will recognise, the new definition of that term includes housing, as we discussed in the debate on group 1. However, crucially, although that puts housing services into the bill, section 1 does not create a hierarchy of services.
For the same reasons, amendment 18 also replaces the specific reference to “housing services” in section 15(3)(a) with a reference to “relevant general services”. That means that the national performance framework may contain material regarding performance including, in particular, other indicators that may be used to measure performance to facilitate access to relevant general services rather than just housing services.
Amendment 19 again makes it clear that the term “relevant general services” has the same meaning as in section 1, which, as I just said, includes housing.
I hope that that reassures members.
I move amendment 14.
Amendment 14 agreed to.
Amendments 15 and 16 moved—[Paul Wheelhouse] and agreed to.
We come to group 5. Amendment 17, the name of the minister, is grouped with amendments 20, 21, 25 and 25A.
Amendments 17, 20 and 21 insert new subsections into sections 13, 15 and 21 respectively, which concern the national strategy, the performance framework and the guidance on community justice planning and reporting. The purpose of the new subsections is to ensure that the requirement to consult in each section is complied with even if the consultation begins or takes place before the relevant section is brought into force.
The amendments are necessary because much consultation has already taken place with stakeholders over the past 12 to 18 months. I wish to ensure that that extensive consultation can be taken into account in relation to meeting the consultation requirements that are set out in sections 13, 15 and 21. If the amendments were not agreed to, further consultation would be required, which would lead to a significant delay in the finalisation and publication of the national strategy, the performance framework and the guidance and would necessitate reinventing the wheel to a considerable degree. Further consultation would also create additional work for our stakeholders, who have already given generously of their time.
I ask members to recognise the extensive consultation activity that has already has been undertaken with stakeholders and to support amendments 17, 20 and 21 to ensure that that work is taken forward.
I turn to amendment 25. Section 36 makes provision for commencement. Amendment 25 seeks to insert in section 36(1) a reference to sections 1, 1A, 12(1), 12A(1), 12A(2), 13, 15 and 32 to provide that those sections will come into force on the day after royal assent rather than being commenced by regulations following the usual convention of waiting until two months after royal assent. It is not a request that I make lightly, so I will explain my reasons for making it.
The bill requires community justice partners to prepare a plan in relation to community justice for their area and to have regard to the national strategy, the national performance framework and any guidance that is issued by the Scottish ministers. Naturally, the community justice partners must also know who is to do the planning, whom to plan for and whom to consult.
To give the community justice partners the opportunity to comply with the requirement to produce a plan in spring 2017, it will be necessary to have the national strategy, the national performance framework and the guidance in place prior to that. The availability of those key documents in early summer will allow community justice partners to begin preparations to meet the planning duties that the bill places on them. The extensive consultation that has taken place means that the community justice partners will already be aware of the general content and direction, so nothing in those documents should be unexpected.
Accordingly, amendment 25 seeks to amend section 36(1) so that sections 13 and 15 can be commenced the day after royal assent. Sections 1, 1A, 12(1), 12A(1), 12A(2) and 32, which contain definitions that are relevant to the national strategy and the national performance framework, require to be commenced at the same time, so reference to those sections must also be inserted in section 36(1). I therefore urge the chamber to support amendment 25 to ensure that a smooth transition takes place.
Margaret McDougall’s amendment 25A is consequential on her amendments 28 and 29. It seeks to amend my amendment 25 to provide that sections 12A(1) to 12A(2B) will be commenced the day after royal assent. That is necessary because the definition of a third sector body that is involved in community justice is relevant to the requirement in sections 13 and 15 to consult such bodies. I therefore support amendment 25A, thank Margaret McDougall for working with the Government on it and urge members to support it.
I move amendment 17.
Amendment 25A supports the minister’s amendments.
Amendment 17 agreed to.
Section 15—National performance framework in relation to community justice
Amendments 18 to 20 moved—[Paul Wheelhouse]—and agreed to.
After section 18
We move to group 6. Amendment 30, in the name of Margaret McDougall, is grouped with amendment 31.
The third sector plays an invaluable role in delivering vital services in relation to community justice, not only for victims and their families but for those who are convicted of an offence and their families, so I very much welcome the comment that the minister made about the sector at stage 2. He said:
“I fully recognise that the third sector is vital to the successful planning and delivery of effective and efficient services for individuals, and I am grateful for the positive contribution that the sector makes to community justice at local and national levels.”—[Official Report, Justice Committee, 26 January 2016; c 2.]
Amendment 30 seeks to put in place a reporting mechanism whereby community justice partners must reflect and report on the actions that they have taken to facilitate the participation of the third sector and state which third sector bodies were involved in the development and preparation of the community justice outcomes improvement plan, in line with section 18(3). Amendment 31 seeks to ensure that, when a local improvement plan is revised, the same statement must be produced for that revised plan.
The intention of the amendments is to ensure that the good intentions in section 18(3) on participation of the third sector in community justice outcomes improvement planning are not lost in practice. Too often, the role of the third sector can be confined to service delivery but, more often than not, the sector has the skills, expertise and knowledge to contribute to the strategic development and planning of services as well as front-line delivery.
The amendments will ensure that community justice partners provide a statement to community justice Scotland on how they have fulfilled their duties to facilitate the participation of the third sector under section 18(3). If the statement indicates a deficiency in the participation of the third sector, I hope that community justice Scotland will use its powers under section 25 to rectify that. I believe that the amendments will strengthen the bill, introduce a necessary level of accountability for community justice partners, and ensure that the crucial role of the third sector in community justice planning is upheld.
I thank the Minister for Community Safety and Legal Affairs and his officials for their constructive dialogue about the amendments, and I urge all members to support them.
I move amendment 30.
I am grateful to Margaret McDougall for agreeing at stage 2 to work with me on amendment 30, which is important. I know that third sector bodies and, indeed, community bodies play an important role in community justice. It is therefore right that the community justice partners should not only enable their participation in the preparation of the community justice outcomes improvement plans but be required to evidence how that participation took place. I am content that amendment 30 makes it absolutely clear how important the third sector bodies’ role in the preparation of the plans is.
I am very happy to support amendments 30 and 31, and I urge members to support them.
Amendment 30 agreed to.
Section 19—Review of community justice outcomes improvement plan
Amendment 31 moved—[Margaret McDougall]—and agreed to.
Section 21—Guidance in relation to community justice outcomes improvement planning
Amendment 21 moved—[Paul Wheelhouse]—and agreed to.
Section 26—Ability of Community Justice Scotland to develop and arrange services
Amendments 22 to 24 moved—[Paul Wheelhouse]—and agreed to.
Section 30—Duty of co-operation
We move to group 7. Amendment 32, in the name of Dr Elaine Murray, is the only amendment in the group.
At stage 2, I lodged a number of amendments that were proposed by the Convention of Scottish Local Authorities. They included an amendment to section 30 that required each local community justice partner to demonstrate co-operation with the other partners. At that stage, the minister recognised that section 20, on reporting on performance, did not require community justice partners to state how outcomes had been achieved, and he therefore amended that section to require the report to include activity undertaken by the community justice partners individually or jointly to achieve or maintain outcomes. As that amendment went some way to address the concerns that were expressed in my stage 2 amendment, I did not press it and agreed to discuss with the bill team an amendment that reflected COSLA’s principal concern that community justice services locally should be tailored to local need and should not be imposed by CJS.
Amendment 32 will amend section 30 to require community justice partners, in undertaking their duty of co-operation, to
“have regard to the desirability of community justice ... being best suited to the needs of”
local areas. That would mean that there would not be a one-size-fits-all approach imposed by community justice Scotland on local groups and that local community justice partners would have the flexibility to tailor the services that they offer to the needs of their area.
I thank the bill team and the minister for their consideration of how those concerns could be addressed in the bill.
I move amendment 32.
I thank Dr Murray for agreeing to work with me on amendment 32, which seeks to ensure that, when community justice Scotland and the community justice partners are co-operating with each other, they do so having regard to what is best suited to or most appropriate for the local area. That is an important point that Dr Murray raised.
The new model for community justice is first and foremost a local model that places decision making with those who know their communities best and understand the problems that are unique to their area. That is why it is important that Dr Murray’s amendment highlights the need for co-operation between community justice partners and with community justice Scotland to take account of what is best for the local area.
I support amendment 32 and urge members to support it.
Amendment 32 agreed to.
After section 32
We move to group 8. Amendment 33, in the name of Margaret Mitchell, is the only amendment in the group.
Although many of the amendments vastly improve the bill, certain questions and uncertainties remain about its provisions. Those include something as basic as the funding for the 32 sets of CJPs. In particular, at this stage it is not clear whether the Transfer of Undertakings (Protection of Employment) Regulations—TUPE—option is to be adopted for the staff previously employed in Scotland’s eight criminal justice authorities to transfer into the new model. Will the minister give a definitive answer on that point, as it would be unacceptable if those who are affected are still unaware at this late stage of what the future holds for them?
14:45Furthermore, the bill is being introduced before the new penal reforms on reoffending, which the bill’s model of community justice will be asked to deliver, have even been finalised. In addition, there is still some unease about the relationship between the centralised CJS and the 32 sets of CJPs.
For all those reasons, and in view of the almost total lack of post-legislative scrutiny in the Parliament since its inception, it seems entirely reasonable and sensible to introduce the sunset clause that is proposed in amendment 33. The amendment sets out that the bill must be reviewed after five—and no more than six—years from the date of royal assent. Who knows? Perhaps at that point it will be deemed appropriate to add provisions that include prevention and early intervention.
I move amendment 33.
Amendment 33 seems to be the introduction of a sunset clause, repealing sections 1 to 32 of the bill after six years unless ministers have by regulation allowed the provisions to continue.
Although I share Margaret Mitchell’s concerns about funding, I do not understand how the amendment would address her concerns about TUPE, because staff will already have been transferred at the point at which the provisions become law.
I do not understand where the drive for the amendment comes from. I do not recall any evidence at stage 1 suggesting that there should be a sunset clause, nor was there much evidence opposing the changes to the community justice system that the bill proposes. Most witnesses welcomed the bill; many felt that it could be improved, but it has been improved. It seems to be very odd to insert a section into a bill which would simply allow the community justice system to disintegrate after six years; it would not revert to the current arrangements and, even if it did, we have heard significant criticism of how community justice is working at present.
The bill provides for annual reports on the exercise of the functions of CJS, a national strategy and a national performance framework that must be reviewed within five years, and community justice outcome improvement plans that will be reviewed after the publication of a revised national strategy or framework. The bill contains several opportunities for evaluation of whether they are working satisfactorily. Organisations such as Audit Scotland will be able to review the performance of CJS and the local organisations as it did the performance of CJAs. The Parliament’s Justice Committee will be able to consider the reports and, if in future it is less burdened with primary legislation, it could conduct post-legislative scrutiny of the bill.
There is a place for sunset clauses in legislation, but Labour members do not think that this is one of them.
I associate myself with the comments of Dr Elaine Murray. I, too, am baffled as to why there is an attempt to put a sunset clause in the bill at this stage.
Could you direct your microphone a little better, Mr Campbell.
Is that helpful?
There was no discussion of the matter at stage 1. Furthermore, Audit Scotland will want to look at the bill in the future and I cannot believe that any future Justice Committee will not review the whole issue of community justice.
On a small point of detail, the amendment refers to repealing sections 1 to 32. Section 31 abolishes the CJAs. No doubt there is a good explanation of what will happen if they are abolished by section 31 and then brought back into being by the amendment. Perhaps the member would explain the effect of that when she winds up.
I, too, associate myself with Elaine Murray’s remarks. I will cover some of the same ground.
I am disappointed to see such an amendment being lodged at this stage. The amendment would mean that the bill would be temporary in duration, which would create uncertainty for the very people providing community justice to whom Margaret Mitchell refers, and those affected by it, and would negate the extensive work by community justice stakeholders in shaping the bill that is before us today.
This sort of proposal is generally intended to ensure that new legislation is reviewed after a period of operation in order to assess whether it is having the intended effect. I have no argument with that principle. After all, it is standard practice to keep legislation under review. Elaine Murray referred to that on a number of occasions. However, to put such provisions in legislation is extremely rare. In the case of this bill, it is completely unnecessary.
As referred to by Dr Murray and Roderick Campbell, the bill has been subject to full parliamentary scrutiny, with a lot of evidence submitted at stage 1 and full discussion at stage 2. It was not subject to any form of expedited procedure that would have prevented it from being scrutinised by Parliament in the normal way. In addition, no exceptional or controversial powers are included that would make it appropriate for the bill to be subject to review by Parliament in this way. There has been extensive consultation and a significant amount of collaboration with stakeholders, including COSLA and third sector organisations, both prior to introduction and during the bill’s parliamentary passage. There will continue to be such collaboration to ensure that the new model works properly and the transition is as smooth as we can make it.
The Scottish ministers will receive regular reports from community justice Scotland, which will be a new partner in the justice board, and therefore ministers would be very aware of any problems with the operation of the legislation that might require their attention. Of course, the national strategy will be a live document, and annual reports to Parliament will keep Parliament aware of progress and any challenges that are emerging.
It is also worth noting that no comparable amendment was lodged at stage 2. The Justice Committee was, accordingly, not given any opportunity to consider it. Further, the substantial regulation-making powers that the amendment would confer have been nowhere near the Delegated Powers and Law Reform Committee.
The power in subsection (3) is particularly sweeping. In the event that the repeal in subsection (1) takes effect, all the machinery in the bill, including the existence of community justice Scotland, will be swept away with nothing to replace it. It is not clear whether the member intends that the pre-existing community justice arrangements would be revived or, if so, how they would be revived. Also unclear is the extent to which the member thinks that the power could be exercised to devise entirely new community justice arrangements. Either way, I regard this as a highly risky approach.
For all those reasons, I cannot support amendment 33. It is unnecessary and inappropriate in relation to the bill and could precipitate considerable problems by creating a vacuum. I ask members not to agree to the amendment and instead to trust Parliament to exercise its powers to review the effectiveness of legislation in the normal way.
Elaine Murray’s point about TUPE is right—the sunset clause will not address that issue. I notice that the minister has failed to take the opportunity to give some reassurance on that point.
On the point about there being no discussion at stage 2 about a sunset clause, an amendment was passed by the Justice Committee at stage 2 to include prevention and early intervention. At stage 3, that has been removed. On that basis alone, it is sensible and reasonable to have a sunset clause to allow consideration of whether prevention and early intervention could be included.
In addition, there are still questions about basic funding. How will that pan out over the next five years? We know that COSLA is particularly unhappy about these provisions. Further, the bill as introduced puts in place a model to deliver penal reforms that have still not been finalised. A sunset clause would give us an opportunity to see how those penal reforms had bedded in.
I repeat the point about post-legislative scrutiny. It has not happened in the past 16 years and I have little confidence that it will happen in future. The amendment is a sensible mechanism to ensure that this very important piece of legislation can be reviewed and improved in future.
The question is, that amendment 33 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Brown, Gavin (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Davidson, Ruth (Glasgow) (Con)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Johnstone, Alex (North East Scotland) (Con)
Lamont, John (Ettrick, Roxburgh and Berwickshire) (Con)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brennan, Lesley (North East Scotland) (Lab)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Finnie, John (Highlands and Islands) (Ind)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Renfrewshire South) (Lab)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hilton, Cara (Dunfermline) (Lab)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kelly, James (Rutherglen) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow Pollok) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Malik, Hanzala (Glasgow) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McCulloch, Margaret (Central Scotland) (Lab)
McDonald, Mark (Aberdeen Donside) (SNP)
McDougall, Margaret (West Scotland) (Lab)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMillan, Stuart (West Scotland) (SNP)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Scott, Tavish (Shetland Islands) (LD)
Smith, Drew (Glasgow) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (Ind)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (Ind)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 12, Against 98, Abstentions 0.
Amendment 33 disagreed to.
Section 36—Commencement
Amendment 25 moved—[Paul Wheelhouse].
Amendment 25A moved—[Margaret McDougall]—and agreed to.
Amendment 25, as amended, agreed to.
That ends consideration of amendments.
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