Criminal Justice (Scotland) Bill: Stage 3
Resumed debate.
Good afternoon. We pick up consideration of the Criminal Justice (Scotland) Bill from where we left off this morning. We were on group 3, on victim statements. We have to get through all of groups 3 and 4 in the next 15 minutes, so I ask members to keep their speeches tight. I call Roseanna Cunningham.
Are we not moving straight to the vote?
Do you not want to wind up?
No. I think that enough has been said on amendment 85. I want to withdraw the amendment.
Amendment 85, by agreement, withdrawn.
Amendment 86 not moved.
Amendments 18 to 23 moved—[Mr Jim Wallace]—and agreed to.
Amendment 87 moved—[Roseanna Cunningham].
The question is, that amendment 87 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fabiani, Linda (Central Scotland) (SNP)
Gibson, Mr Kenneth (Glasgow) (SNP)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Hyslop, Fiona (Lothians) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McGugan, Irene (North-East Scotland) (SNP)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Neil, Alex (Central Scotland) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Tosh, Mr Murray (South of Scotland) (Con)
Welsh, Mr Andrew (Angus) (SNP)
Wilson, Andrew (Central Scotland) (SNP)
Against
Barrie, Scott (Dunfermline West) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAllion, Mr John (Dundee East) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Wallace, Mr Jim (Orkney) (LD)
Wilson, Allan (Cunninghame North) (Lab)
Abstentions
Gallie, Phil (South of Scotland) (Con)
The result of the division is: For 22, Against 42, Abstentions 1.
Amendment 87 disagreed to.
Amendments 88 and 89 moved—[Roseanna Cunningham]—and agreed to.
Amendment 90 not moved.
Section 15—Victim's right to receive information concerning release etc of offender
Amendment 24 is grouped with amendments 44, 25, 26 to 29, 91, 30, 31 and 92.
I am glad to speak briefly to amendment 24. Section 14(2) restricts the victim's statement to
"a natural person against whom a prescribed offence has been … perpetrated".
The Law Society of Scotland questioned why the provision is so narrowly drafted. Should not a sole trader, a family partnership consisting of parents and their children or a close company that has been the victim of a crime also be given the chance to present a statement detailing the impact of the crime?
The Scottish justice system has often found itself criticised for the scant information that is provided to victims of crime. The definition of those who may give a victim statement is dealt with under section 14(10). Although I have no wish to extend that definition to include a cast of thousands, we should extend the category of those who are entitled to make victim statements and receive information, as the amendment proposes. The impact on a surviving partner after a homicide would be considerable; therefore, it seems equitable to allow them to make a victim statement and to obtain information, as appropriate.
Amendment 44 seeks to time-limit certain aspects of section 15, which is understandable.
Amendment 28 brings into play a necessary part of legislation where the convicted person is extremely young.
I see the sense behind Roseanna Cunningham's amendment 91, but were section 15(2) to be left out in its entirety, we would have to try to resolve a historical situation involving innumerable victims of crime. Many of those persons might have moved house or changed name on marriage or for other reasons. Therefore, the amendment would place on the authorities an onerous duty that could, in practical terms, prove impossible to meet.
Amendment 92 is necessary. Although we must avoid alarming people unnecessarily, victims who might be prejudiced by the escape of a convicted person should be notified. We will support amendment 92.
I move amendment 24.
As James Douglas-Hamilton says, amendment 24 would extend to legal persons the right to receive information about the release of an offender from prison. I remind the Parliament of the purpose of victim notification, which was to provide the right for individuals who have been the victims of certain crimes to receive information on the release of their assailant. The notification scheme exists primarily to allay any concerns that victims have about their safety or about possibly meeting their assailant unexpectedly.
I give James Douglas-Hamilton the reassurance that the scheme will include sole traders or individuals who have been affected in what might be described as a corporate situation. What the scheme will not do is to notify Boots the chemist if someone who committed fraud against the company is released. However, a sole trader who was the victim of an assault—although the assault might have occurred in a trading situation—will be an individual for the purposes of the provisions. The intention was never to provide that right to private companies or other corporate bodies.
Amendments 25, 26, 27 and 28 seek to fulfil the original policy intention behind the provisions by ensuring that offenders who have a mental disorder and are detained in hospital as patients, rather than being sentenced to prison, are excluded from the provisions of section 15. A tension clearly exists between the rights of the victim and the rights of the patient. There are complex issues surrounding patient confidentiality, which place different constraints on the information that can be disclosed. In addition, there are European convention of human rights considerations to take into account. We are aware that the release of information to victims of mentally disordered offenders requires serious consideration, and we have given a commitment to consult all relevant interests on the issues.
Amendment 29 removes from section 15(1) the requirement for ministers to prescribe through subordinate legislation the method by which a victim intimates that they wish to receive information about the release of their assailant from prison. We consider that it is not necessary to prescribe in secondary legislation the specific format in which victims are to indicate that they wish to receive information. At present, the Crown Office and Procurator Fiscal Service issues forms to eligible victims, which they can complete and send to the Scottish Prison Service if they wish to receive information. Victims whose assailant was convicted before 1 April 1997 can write to the Scottish Prison Service, which will check whether they are eligible to receive information.
The victim notification scheme came into being on 1 April 1997, from which point all eligible victims have been asked whether they wish to receive information about the release of the offender. Section 15 gives a statutory right to eligible victims to receive information about offenders who were sentenced after 1 April 1997. Executive amendment 44 seeks to extend that right to eligible victims of offenders who were sentenced prior to 1 April 1997. However, we recognise that amendment 44 does not go far enough.
Amendment 91 seeks to give victims who are eligible to receive information under section 15(1) the right to receive the information set out in section 15(4) when the offender was sentenced prior to 1 April 1997.
We accept that the combination of amendment 91 with amendment 44 achieves the policy intention, to which Lord James Douglas-Hamilton referred, to extend the right to receive information to victims whose assailant was sentenced prior to 1 April 1997.
Amendment 44 is in the Executive's name and we will also support amendment 91. We thank Roseanna Cunningham for bringing the matter to our attention.
Amendment 30 seeks to clarify that the information provided to victims about the date of release of convicted persons pertains to release under the Prisons (Scotland) Act 1989 or the Prisoners and Criminal Proceedings (Scotland) Act 1993. That means that victims will always be informed of release from sentence, but will not be informed of release from hospital if the convicted person has a hospital disposal and is detained beyond the duration of their prison sentence by virtue of their illness.
Amendment 31 seeks to clarify that the information provided to victims about the temporary release of convicted persons pertains to temporary release under the Prisons (Scotland) Act 1989. The effect of the amendment is that victims will not be informed of temporary release from hospital if the convicted person has also been detained in hospital because they have a mental disorder.
As I said in relation to amendments 25 to 28, we intend to consult on our policy in relation to the future release of information to victims of mentally disordered offenders.
Amendment 92 seeks to insert an additional category into the list of information that should be supplied to victims who sign up to receive information. It would require the Scottish ministers to inform the victim if the convicted person had escaped or absconded from custody. That information is not provided to victims under the current scheme and I believe that Roseanna Cunningham has identified an important addition to the list of information to be given to victims. Therefore, the Executive will support the amendment.
I hope that, following the reassurance that I have given Lord James Douglas-Hamilton, he will be prepared to withdraw amendment 24.
I welcome the Executive's decision to accept amendments 91 and 92.
If a person was sentenced prior to 1 April 1997 the Executive has the power, but is not required, to provide information to the victim on the convicted person's date of release, death, transfer out of Scotland or temporary release. Amendment 91 will require that the Executive's provides the information even if the offence was committed before 1 April 1997. I note the concerns that have been expressed by Lord James Douglas-Hamilton on behalf of the Conservative party. However, I remind him that the victim must intimate their wish for information, so tracking them down should not represent a particular difficulty.
I welcome the Executive's willingness to accept amendment 92. The purpose of the amendment is to require the Executive, in addition to providing information to victims on the date of release, death, transfer out of Scotland or temporary release of the convicted person, to tell the victim if the convicted person escapes or absconds from custody. That seems reasonable.
I thank the minister for his reply, but his assurance does not include private companies, which was one of the Law Society of Scotland's concerns. I will press amendment 24, as a marker that private companies should be entitled to give victim impact statements if they are adversely affected by robberies and crime.
The question is, that amendment 24 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Gallie, Phil (South of Scotland) (Con)
Johnstone, Alex (North-East Scotland) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Tosh, Mr Murray (South of Scotland) (Con)
Young, John (West of Scotland) (Con)
Against
Adam, Brian (North-East Scotland) (SNP)
Alexander, Ms Wendy (Paisley North) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gibson, Mr Kenneth (Glasgow) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North-East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McGugan, Irene (North-East Scotland) (SNP)
McLeod, Fiona (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Paterson, Mr Gil (Central Scotland) (SNP)
Peacock, Peter (Highlands and Islands) (Lab)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robison, Shona (North-East Scotland) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Swinney, Mr John (North Tayside) (SNP)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Welsh, Mr Andrew (Angus) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Wilson, Andrew (Central Scotland) (SNP)
The result of the division is: For 8, Against 82, Abstentions 0.
Amendment 24 disagreed to.
Amendments 44 and 25 to 29 moved—[Hugh Henry]—and agreed to.
Amendment 91 moved—[Michael Matheson]—and agreed to.
Amendments 30 and 31 moved—[Hugh Henry]—and agreed to.
Amendment 92 moved—[Roseanna Cunningham]—and agreed to.
Section 24—Consecutive sentences: life prisoners etc
That takes us within the guillotine to group 5, on consecutive sentences. Amendment 49 is grouped with amendments 50 to 53.
In essence, amendments 49 to 53 replace the provisions that are in the bill at present, but do not change what they aim to achieve.
As the policy memorandum for the bill explains, we wish to provide the courts with a new power in relation to life sentences. Currently, a life sentence cannot run consecutively to another sentence, nor vice versa. We want to give courts a new power to order that a subsequent determinate sentence of imprisonment for an offence or the punishment part of a second life sentence can be ordered to run consecutively to the punishment part of an existing life sentence.
Similarly, we want to give the courts the power to order that the punishment part of a life sentence can be ordered to run consecutively to a determinate sentence that a prisoner is serving or is liable to serve. In a nutshell, the provisions introduced by these amendments will do just that.
Furthermore, they will mean that a prisoner in respect of whom such sentences are imposed will have no right to be considered for release, or to be released, until he or she reaches the point at which he or she may be considered for release or must be released from all the sentences that the courts have ordered to be served.
I move amendment 49.
I am somewhat intrigued by amendment 49. I would have thought it unnecessary; cannot the matter be dealt with administratively? Would not the simple way forward be for the judge to impose a further life sentence, stipulating the punishment part and stating that it has to be served consecutively to any sentence already imposed by the courts or any other sentence that might be imposed in the interim? What is proposed does not seem in any way unreasonable, but I think that it is an over-complex way of resolving the matter. The issue is quite simple and straightforward. The judge would simply say that any further life sentence, and the punishment part thereof, should succeed the initial sentence.
Amendment 49 agreed to.
Amendment 50 moved—[Hugh Henry]—and agreed to.
After section 24
Amendment 32 is in a group on its own.
Amendment 32 is an attempt to reduce the logjam in sheriff and jury courts. At present, on summary conviction, a maximum sentence of three months' imprisonment can be imposed, although that increases to six months where the accused person has previously been convicted of an analogous offence. There are specific provisions under the Police (Scotland) Act 1967, whereby, for example, a sentence of nine months can be imposed by a sheriff or stipendiary magistrate in a district court in Glasgow for an offence of police assault. Nevertheless, there still appears to be a great amount of business going through sheriff courts, where sentences on indictment are 12 months or less.
I am always reluctant to interfere with the long-established principles of Scots law, and I recognise that the right to a jury trial where the sentence could be six months is a right with which we should not interfere lightly, but what is proposed in amendment 32 would not interfere seriously with the inherent fairness of our system.
If the amendment is passed, its effect would be to reduce significantly the amount of work going to the sheriff and jury courts, to enable those courts to deal with more serious matters and to speed up the judicial process in a high percentage of cases that currently go before the sheriffs on indictment.
I move amendment 32.
Bill Aitken might recall that it was the Conservative party, under the Criminal Procedure (Scotland) Act 1995, that extended the powers of sheriffs to be able to sentence up to six months in summary procedures. It is clear that the Conservatives think that there should be a further extension, but I am not sure whether that is the best way to tackle the problems in the criminal justice system.
Bill Aitken will be aware that the McInnes review is considering the whole issue of sheriff courts. I would have thought that it would be more appropriate to wait for the outcome of that review and to see what should be implemented from it before we start to make changes.
Why Bill Aitken has decided to pick out serious offences such as personal violence and dishonesty is unclear. It could be argued that other serious offences—such as drugs trafficking or collecting child pornography—could equally be included.
I echo some of what Michael Matheson said. Amendment 32 replicates section 13(2)(b) of the Crime and Punishment (Scotland) Act 1997. Commencing the provision would pre-empt the findings of the summary justice review committee. Members will know that we set up that committee, which is chaired by Sheriff Principal McInnes, to consider all aspects of summary justice, including the important matter of the dividing boundaries for sentencing powers between the different levels of criminal court. Sentencing powers cannot be taken in isolation, but must be considered in the context of the structure of the criminal justice system and, in particular, of the types of cases that should be dealt with at each level of the criminal courts. We must also bear in mind the need to distribute work appropriately between summary and solemn courts.
The summary justice review committee is considering sentencing powers in that context. If the committee recommends that there should be a change, we will certainly consider seriously its recommendation.
As the terms of amendment 32 are already enacted, I invite Bill Aitken to withdraw it.
I do not propose to withdraw amendment 32, albeit that I am faced with the unholy liberal alliance of Hugh Henry and Michael Matheson—if ever I needed any justification for knowing that I was right, that is it.
On what Michael Matheson said about the particular type of offence for which we suggest that the procedure be introduced, crimes of violence is the section of criminal activity that, unfortunately, is showing the most spectacular increase. On that basis, there is justification for the amendment.
What Michael Matheson said about the activities of the McInnes inquiry into the operation of the summary courts has slightly more validity. His argument that the matter might be best dealt with by the inquiry has some credence. However, I suspect that, before the Parliament is much older, it will debate the inquiry's report and one of its recommendations will almost inevitably be to suggest exactly what I am suggesting today. It would be as well for us to agree to my suggestions here and now and get on with things.
The question is, that amendment 32 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Gallie, Phil (South of Scotland) (Con)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Johnstone, Alex (North-East Scotland) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Tosh, Mr Murray (South of Scotland) (Con)
Young, John (West of Scotland) (Con)
Against
Adam, Brian (North-East Scotland) (SNP)
Alexander, Ms Wendy (Paisley North) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gibson, Mr Kenneth (Glasgow) (SNP)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North-East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McGugan, Irene (North-East Scotland) (SNP)
McLeod, Fiona (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Paterson, Mr Gil (Central Scotland) (SNP)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robison, Shona (North-East Scotland) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow) (SNP)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Welsh, Mr Andrew (Angus) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Wilson, Andrew (Central Scotland) (SNP)
The result of the division is: For 9, Against 83, Abstentions 0.
Amendment 32 disagreed to.
Section 27—Release on licence: life prisoners
Amendments 51 and 52 moved—[Hugh Henry]—and agreed to.
After section 27
Amendment 53 moved—[Hugh Henry]—and agreed to.
Amendment 78 is grouped with amendments 54 to 56 and 45.
There is an inherent dishonesty in our approach to sentencing. As members will be aware, a remission of 50 per cent is currently applied to sentences that are of four years or less and a remission of a third is applied for sentences that are higher than that. The net effect is that a person who is sentenced to nine years does only six years, a person who is sentenced to four years does only two years and a person who is sentenced to six months does only three months. Those are typical examples. The public are increasingly concerned about the fact that the judicial system is misleading.
Amendment 78 would mean that the sentence that was handed down would be the time that the person would serve. I ask members to put themselves in the position of someone who, having been the victim of a serious assault, sees the perpetrator jailed for three years. Two years later, they see their assailant walking down the street and getting on to the same bus or entering the same public house. That sort of thing increases public unease considerably. The victims of crime are finding it increasingly difficult to understand why such things happen. Amendment 78 would stop such things happening.
The amendment is not an attempt to increase the amount of time that individuals spend in jail, as we would fully expect judges to reduce the tariff in such circumstances. However, the situation would at least be up front and honest.
The original intent of remission was that it would act as an incentive to convicted persons to behave well in prison. If they did not do so, their remission could be reduced with the result that they would spend more time in jail. However, the European convention on human rights has had a negative impact on that, as on many other aspects of Scots law. Questioning of the Minister for Justice has revealed that few prisoners have suffered loss of remission over the past couple of years. Basically, the use of remission as a tool to control behaviour is no longer relevant to our considerations.
We have no objection to amendments 54, 55 and 56. We feel certain that amendment 45 is fairly innocent, although I would like to hear a ministerial explanation of it. I do not have any suspicions, but an explanation would be helpful in the interests of clarity.
It is time that we were up front with the Scottish public. Judges should mean what they say when they pass sentence. I stress that amendment 78 is not a device to ensure that people spend more time in prison. We fully expect that the tariffs would be reduced, but at least everyone would know where they stood. Amendment 78 would mean that we could obviate the difficult situation that confronts many people when they see someone who has assaulted them being released from prison a lot earlier than had been expected.
I move amendment 78.
Amendments 54 and 56, like amendments 55 and 45, are technical amendments. Amendments 54 and 56 will remove from the Repatriation of Prisoners Act 1984 provisions for the treatment of repatriated life prisoners that have become obsolete. The provisions are obsolete because of the changes to the system for the consideration of the release of life prisoners that were made by the Parliament when it passed the Convention Rights (Compliance) (Scotland) Act 2001. The amendments will make it clear that life prisoners who are repatriated to Scotland will, like other life prisoners, normally have a punishment part of their life sentence set by the High Court. They will have to serve that punishment part before the Parole Board for Scotland can consider them for release.
Along with amendment 55, amendment 56 will provide that the provisions to be inserted by section 29 of the bill into the schedule to the 1984 act will apply only to prisoners who received a sentence on or after 1 October 1993 and who are repatriated to Scotland after section 29 comes into force. Taken together, the amendments ensure that the new provisions governing the eligibility for release of prisoners who are repatriated to Scotland from abroad will not apply retrospectively. That is in line with the normal presumption that changes in the law should not apply retrospectively.
As Mr Aitken is eager to hear an explanation of amendment 45, I point out that it is a minor consequential amendment to section 34. Section 34(2)(c) inserts a new subsection (5) into section 7 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. Paragraph (c) of that new subsection refers to a provision of section 17 of the 1993 act that section 32 of the bill will remove. Therefore, the new subsection (5)(c) is no longer appropriate and requires to be deleted, which is all that amendment 45 seeks to do.
Say that again without notes.
The amendment is technical.
On amendment 78, Bill Aitken is certainly a trier in his attempt to change a law that his party introduced. It is worth reminding members that the effect of amendment 78 would be to repeal provisions of the Prisoners and Criminal Proceedings (Scotland) Act 1993, which was introduced by the Conservative Administration, of which Lord James Douglas-Hamilton was a distinguished member. That act followed a review of the early-release system by a committee under the chairmanship of Lord Kincraig, which was set up by the then Secretary of State for Scotland, Mr Malcolm Rifkind.
Bill Aitken lodged a similar amendment at stage 2, although it did not go as far as amendment 78, which would create some undesirable and, in some cases, irrational effects. First, in spite of what Bill Aitken says, the amendment could lead to a substantial increase in the daily prison population. I cannot put an exact figure on that, but, given that Bill Aitken's expectations are not correct, I will say that the figure would be of the order of 2,000.
Secondly, the amendment would create some blatant anomalies. By way of illustration, let us take two co-accused, one of whom is sentenced to four years and the other to three years. The prisoner who is sentenced to four years could be released on licence after serving half the sentence if the Parole Board for Scotland recommended that. In other words, he could be released after two years. However, his co-accused, who was sentenced to three years, would be required to serve the full three-year sentence. I am sure that such an irrational situation is not Bill Aitken's intention. It goes without saying that such a system would lead to severe difficulties for the management of prisoners.
In the case of long-term prisoners who are not released on parole, there would be no compulsory supervision in the community on release as there is at present, which would be counterproductive. Prisoners would not be under the supervision of a social worker with whom work to address offending behaviour could continue during a period on licence and from whom the prisoner would be able to get help with resettlement in the community.
Given those points, I ask members to reject amendment 78 and to support amendments 54 to 56 and 45.
It is perhaps not surprising that I support Bill Aitken's amendment 78. Jim Wallace referred to the fact that Conservative ministers introduced the provisions that amendment 78 would remove. He is quite right, but he should also recall that the only opposition to the provisions came from within the Conservative party. Members from the Liberal and Labour parties and the nationalists went along whole-heartedly with the proposals.
Jim Wallace suggested that amendment 78 would lead to an increase in the number of prisoners, but I suggest that it might have another effect. Although there might be a marginal increase in the short term, the number of prisoners being sent to prison to serve their time will be reduced as a result of better rehabilitation within prisons. We have heard all too often that short sentences have no effect on individuals. Amendment 78 would provide a means of addressing that problem and would give the prison authorities the chance to work with individuals to improve their habits.
Amendment 78 would have another effect. Many individuals who are released early from jail are simply recycled back into the courts because many of them commit another offence within a few days or weeks. They do not learn their lesson and are back in the courts, clogging up the court system. The amendment would benefit not only individuals, but the court system.
All members suffer from the problem of the electorate's disillusionment, which arises because politicians are seen to be dishonest. When an offender is sentenced to two or three years, the victim feels that it is dishonest when that individual is back on the streets a relatively short time after the sentence is passed. There are some cases in which a person has served time on remand, is sentenced and is then back on the streets within days of that sentence being passed. The minister would do well to listen to Bill Aitken's comments and to accept amendment 78.
The speeches by Bill Aitken and Phil Gallie indicate the confusion in the Conservative party. One says that the prison population would not increase, whereas the other says that it would and that it would be good for prisoners if it did.
There is a serious point behind Bill Aitken's amendment 78, although I do not believe that the amendment should be supported. The loss of additional days added—ADA—means that a review of the sentencing system is needed. However, the amendment is wholly inappropriate in this context. If it were agreed to, the court's ability to send somebody back for an additional sentence—the element that had not been served—would also be removed. I would not have thought that the Conservative party wanted that. The amendment would remove the deterrent effect when someone knows that some of their sentence is still to be served if an offence is committed.
It is totally wrong to say that the provisions on the release of prisoners show the negative effect of the ECHR, because there has been no problem whatever with the removal of ADA. To suggest that there has been a problem—as the press did when England removed ADA after we did—is totally false. I urge the rejection of amendment 78.
Will the member give way?
I think that Richard Simpson has finished.
Lord James may ask me a question.
Is Richard Simpson aware that prison governors have informed the Justice 1 Committee that, on account of the ECHR, they do not consider the use of added days as a punishment in any circumstances?
I am aware that ADA has been abolished because of the ECHR, but the ECHR has had no negative effect—of any sort—on the governance of our prisons.
We have heard some interesting contributions. Having heard the minister's succinct description of what is meant by amendment 45, I am content to accept it.
The minister talks about legislation introduced in 1993 and says that amendment 78 indicates a change of heart on our part, but he fails to recognise the fact that the legislation is now almost 10 years old. He fails to recognise that his party has been part of an Executive that has been in control for four years, that the Labour Government was in control for the previous three years and that the situation has so deteriorated under his control that the action that we propose in the amendment is necessary.
The minister claimed that there would be some anomalies under our proposal. However, those anomalies would be temporary and would soon work their way through the system. Liberal Democrats should not criticise others for making U-turns when they make them so frequently that, in the Glasgow vernacular, they do not know whether they are coming or going.
On Dr Simpson's intervention, I must say that the situation is not as he described. For sound reasons, Governments of varying persuasions over the years have used the possible loss of remission as a tool for managing behaviour in prisons. That is accepted and understood. However, as my colleague Lord James Douglas-Hamilton said, prison governors no longer use that tool, as was confirmed in the minister's answer to a parliamentary question that I posed not long ago. We therefore have a genuine problem. Prisons are, to a large extent, getting out of control, as has been evidenced by recent events in Shotts, Low Moss and elsewhere.
We want to put down a marker to make it clear that sentences must have a deterrent effect. At the moment, prisoners who are sentenced can immediately perform quick, simple mental arithmetic to realise that the effect of a six-year sentence is not quite what people think it is. Given that the level of crime is rising, there has to be a shift in emphasis. As a result, I will very forcefully press amendment 78.
The question is, that amendment 78 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Davidson, Mr David (North-East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (South of Scotland) (Con)
Gallie, Phil (South of Scotland) (Con)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Johnstone, Alex (North-East Scotland) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Tosh, Mr Murray (South of Scotland) (Con)
Young, John (West of Scotland) (Con)
Against
Adam, Brian (North-East Scotland) (SNP)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gibson, Mr Kenneth (Glasgow) (SNP)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North-East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McGugan, Irene (North-East Scotland) (SNP)
McLeod, Fiona (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Paterson, Mr Gil (Central Scotland) (SNP)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robison, Shona (North-East Scotland) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow) (SNP)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Welsh, Mr Andrew (Angus) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Wilson, Andrew (Central Scotland) (SNP)
The result of the division is: For 12, Against 88, Abstentions 0.
Amendment 78 disagreed to.
Section 29—Prisoners repatriated to Scotland
Amendments 54 to 56 moved—[Mr Jim Wallace]—and agreed to.
Section 34—Special provision in relation to children
Amendment 45 moved—[Mr Jim Wallace]—and agreed to.
Section 36—Drugs courts
Amendment 33 is in a group on its own.
At present, the drugs court concept is operating in Glasgow and is being rolled out elsewhere on a pilot basis. We have absolutely no objection to that, with the caveat that a hard-headed and realistic assessment of the concept must be made at the end of the pilot period. I should stress that we do not regard the end of the pilot period as being the anniversary date of the establishment of the drugs courts. That would come a year later, by the time that any outstanding prosecutions involving the clients of drugs courts had worked their way through the system.
However, there is an inherent unfairness in the way in which the drugs courts operate. Only multiple offenders with many convictions and previous custodial sentences go before the courts. On the day that I visited the Glasgow drugs court as a guest of the Justice 1 Committee, the offender group seemed to be somewhat older than I had expected. It is ironic that, in some cases in Glasgow, the only way in which to get prompt treatment for drugs is to commit numerous offences. A younger person with a handful of offences would not be considered for the service that the drugs courts can provide. That is quite wrong.
I am certain that time will prove that the success rate will be much higher if we can get drugs-driven offenders into the courts before they are settled in their habits. I suggest that amendment 33, which would put an age restriction on the category of person who goes before the courts and restrict to six the number of offences that such a person had committed, is the answer.
I accept that resources are finite, which is why I think that they are not best used by our sending hardened cases to the drugs courts. We need to reconsider the issue. It is a sad commentary on our times that a young person who has developed a drug habit—through their own fault, I concede—cannot receive appropriate drugs treatment when they are willing to undergo such treatment. Indeed, in many cases, those young people are anxious for it. However, they are prevented from receiving treatment because, under the current policy, only people with a considerable record are sent before the drugs courts. No one is beyond salvation, but, where it is necessary to prioritise, we should focus on people with whom we are likely to achieve a measure of success. Unfortunately, I do not think that that is the case in the present system.
I move amendment 33.
Bill Aitken must be given marks for persistence, because he seems to be trying to revisit the whole drugs court debate. What he proposes in amendment 33 should be resisted. The drugs courts are a pilot scheme and it would be strange to tinker with the scheme as it went along. To do so would make it difficult to make a reasonable assessment at the end of the pilot, because we would be dealing with different regimes from different points of the pilot's history. I do not see how that could be helpful.
Similarly, I do not see how the proposed restrictions on the drugs court process could be helpful. I am not sure why Bill Aitken feels that there should be an age limit for diversions to the drugs courts. A drug addict's age is irrelevant. People can become drug addicts at any age and need not necessarily have taken drugs previously.
Moreover, I do not understand why the amendment proposes to restrict referrals to the drugs courts to those whose offences do not exceed a certain number. To do so would remove from the group of people who might benefit from going to the courts folk whom we would want to be diverted there.
I wonder what Bill Aitken really wants. It is clear that locking up drug addicts in prison is not achieving anything, so amendment 33 must be resisted.
Bill Aitken tried this on in committee and failed; he is trying it on again today, but he will fail again. I share his concern about the fact that youngsters who want drug treatment sometimes cannot receive it because the courts make such provision only when resources are available. However, that is not an issue for the criminal justice system; it is a broader one about the way in which we resource the treatment of drug addiction. We will discuss that issue at another time.
The drugs courts exist because the current court system has failed those who keep returning to it. The court system has a long track record of not reforming people who have gone through it, so we must try another way. If Bill Aitken cannot acknowledge that fact and accept that drug abuse incorrigibility does not magically stop during the transition from the age of 24 to the age of 25 but can occur at any age, I will be disappointed in him—he is a man who I have thought can treat matters analytically and with whom I have had many honest disagreements. On the proposals in amendment 33, he must think again. Indeed, I could use the same argument for amendment 38, which we will discuss next.
It will be no surprise that the Executive opposes amendment 33. I would agree with the arguments of Roseanna Cunningham and Stewart Stevenson, but that would confirm Bill Aitken in his view that he is right and I do not want to encourage him on such a road. I think that amendment 33 is profoundly misguided.
Amendment 33 would reduce the number of offenders who were likely to be considered suitable for diversion to a drugs court by using the criteria of age or the number of previous convictions. The amendment would remove the ability of a drugs court to deal with offenders who were over the age of 25 or who had more than six convictions. I am advised that those who are being dealt with by the drugs courts have an average age of 30. It would be wrong to restrict severely the drugs courts' ability to deal with offenders who have been drug dependent for a number of years. As Roseanna Cunningham said, the amendment would take out of the drugs courts the people whom those courts are meant to address.
The drugs courts deal with offenders aged 21 and over who have a pattern of offending that is directly linked to their drugs misuse. Those criteria are based on the experience of drug treatment and testing schemes and, indeed, international experience and research, which have shown that members of that age group are more likely to be at a stage in their lives when they want to commit to addressing their drug addiction and will respond to treatment and to the drugs court regime. In exceptional circumstances, the drugs courts will consider offenders aged 16 to 20. However, it is acknowledged that people in that age group are less likely to be at a stage in their dependency and offending to be sufficiently motivated or mature to cope with a drugs court regime.
The drugs courts are, of course, a pilot scheme. Roseanna Cunningham was right to say that we do not want interference that could thwart much of the scheme's purpose. Therefore, I invite the Parliament to reject amendment 33, if Bill Aitken will not withdraw it.
Roseanna Cunningham slightly missed the point about the age limitation that amendment 33 proposes. If someone were within the proposed age range, that would indicate that the extent of their drug abuse was not as great as that of someone who was much older and who would therefore have been the victim of a drugs habit for a much longer time.
My visit to the drugs court did not leave me without hope but, from what I saw, it did not provide a great deal of hope, either. It is slightly naive of Stewart Stevenson to suggest that the availability of drugs treatment is not an issue for the judicial system. I agree that the resources that are devoted to the treatment of drug addicts are woefully inadequate. However, when there is an inadequacy of resources, we must prioritise. The judicial system must ensure that those who are offered a particular treatment are the ones who are most likely to benefit. That is the purpose behind my amendment.
We are in no way having a go at the drugs court system. We are more than content for the pilot to run, provided that, at the end of the trial period, there is a realistic, not an idealistic, assessment of what has happened. At that stage, we will consider the matter firmly and fairly. However, if the proposal is to have a chance of success, the amendment is necessary.
The question is, that amendment 33 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Davidson, Mr David (North-East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (South of Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Johnstone, Alex (North-East Scotland) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLetchie, David (Lothians) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Tosh, Mr Murray (South of Scotland) (Con)
Young, John (West of Scotland) (Con)
Against
Adam, Brian (North-East Scotland) (SNP)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gibson, Mr Kenneth (Glasgow) (SNP)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North-East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McGugan, Irene (North-East Scotland) (SNP)
McLeod, Fiona (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Paterson, Mr Gil (Central Scotland) (SNP)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robison, Shona (North-East Scotland) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow) (SNP)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Welsh, Mr Andrew (Angus) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Wilson, Andrew (Central Scotland) (SNP)
The result of the division is: For 14, Against 90, Abstentions 0.
Amendment 33 disagreed to.
After section 36
Amendment 38 is in a group on its own.
In the previous debate, I referred to the recent visit to the drugs court, saying that it was interesting and left me not totally without hope. Nevertheless, a great many problems were manifest to me that day. It struck me that most of the offenders had failed, to a greater or lesser extent, to comply with the terms of the order. In some cases, the transgression was fairly mild, such as being late for an appointment; in other cases, it was a failure to attend for drug testing, testing positively for drugs and, in one case, committing a further theft five days after being made subject to a drugs court order, which is not a particularly happy situation.
If the system is to work—as we all hope that it will—there is no point in beating around the bush. Those who are made subject to drugs court orders must comply with them. If they do not, they, and the various agencies with whom they are involved, are wasting their time. There are too many people who are being denied the facilities through lack of resources to show much leniency to those who are not prepared to take the chance that is offered to them.
In effect, amendment 38 would operate a "three strikes and you're out" approach to the drugs courts. The amendment is not intended to be unnecessarily draconian and it recognises that it is difficult for many of the people in the category with which we are dealing to stop taking drugs overnight. Certainly, however, they should not be allowed to offend and get away with it. Acceptance of the amendment would concentrate the minds of those who are subject to the strictures of the courts, ensure a greater degree of co-operation than was evident on the day on which we visited the drugs court, and go a long way towards ensuring that the project might be a success at the end of the pilot period.
Unless some sort of sanction can be brought against those who are not prepared to play the game with the drugs court, the pilot will end in failure. I am certain that none of us wants that.
I move amendment 38.
We are in the same position as we were with the previous amendment. The "three strikes and you're out" approach ignores the reality of what we are trying to achieve with drug testing and treatment orders or drugs court orders.
Bill Aitken wants, in effect, to introduce automatic sentencing, which is an enemy of rational sentencing. The sheriff in the drugs court or who deals with the DTTO already has the power to revoke the order and send the offender to prison. I do not see what could be gained if the Parliament were to decide that it will force the sheriffs to do so even in circumstances in which they believe revocation to be wholly inappropriate.
Amendment 38 is not helpful. If anything, it would wreck the system and set us back rather than move us forward in attempting to achieve what we are trying to achieve—to get drug users away from their drug habits. The SNP will not support it.
The drugs court is one of our criminal justice system's most imaginative methods of tackling crime. The development is to be welcomed.
When Sheriff Matthews, one of the sheriffs who conducts the drugs court in Glasgow sheriff court, came to speak to the Justice 2 Committee, he made some interesting points about that pilot project. The crucial point was that the multidisciplinary approach to drugs courts was the most important issue. That approach acknowledges that those who are involved directly with the offender and who see how the offender started and gets along on the programme are crucial. The right point at which to refer the person to another sheriff is when the multidisciplinary team takes the view that the person is failing.
Such offenders' lifestyles are chaotic because of the nature of drug addiction, but amendment 38 does not acknowledge that. Those who are most severely addicted to drugs can take time to get that addiction under control. The test should be that the convicted person is free from drugs and not offending. It is not necessarily the case that, because a person has been unable to deal with their drug addiction, they are offending. That is the crucial test.
Breach of a probation order is contempt of court. That is right, because the nature of probation is different. With DTTOs, we are dealing with many offenders who have got themselves into a cycle of drug addiction and who therefore offend. That is the ethos behind the drugs courts. Therefore, as Roseanna Cunningham rightly said, a simplistic, "three strikes and you're out" approach is wrong. That is not to say that we should not constantly review how the drugs courts operate, and that those who fail to comply with treatment once they have had enough time and who still offend should not be referred back for another sentence.
Bill Aitken gave the game away when he used the words "play the game". Unfortunately, drug addicts do not know the rules of the game. The point about drug addiction is that it has a series of concomitant symptoms—such as paranoia, manic behaviour, obsession and memory loss—all of which can contribute to the addict's chaotic lifestyle.
Stewart Stevenson is absolutely right, but drug addiction also has the effect that individuals often commit serious crimes. How does he consider that we should treat such individuals with respect to the crimes that they have committed?
Phil Gallie makes a perfectly valid point. Of course drug addicts commit crimes—that is the impact of drug addiction on society, as distinct from its impact on the individual. Both are serious. However, if the traditional court system has failed to address the offending behaviour, we need the drugs courts and another way forward.
My father was a general practitioner in the days when GPs dealt with drug addicts. I have been familiar with drug addicts coming for treatment over 50 years—the problem is not new.
Towards the end of amendment 38, proposed new section 234G(2A) of the Criminal Procedure (Scotland) Act 1995 reads:
"On the third occasion on which it is proved to the satisfaction of the appropriate court that the offender has failed without reasonable excuse to comply with any requirement of the order, the court shall, by order, revoke the order."
That contains the seeds of the destruction of what Bill Aitken is trying to achieve, because the fact of the addiction and the symptoms that are associated with drug abuse give drug abusers who offend the "reasonable excuse" for breaching orders erratically and irregularly. Amendment 38 is simply an attempt to sabotage a worthwhile initiative in the criminal justice system.
It will come as no surprise that I invite the Parliament to reject Bill Aitken's amendment 38. The amendment would remove the power of the drugs court to consider the imposition of interim sanctions of short periods of imprisonment or community service, which are already provided for under section 36 in cases where an offender relapses. Under amendment 38, there would be a mandatory sentence for offenders who relapsed on three occasions. The amendment would remove the drugs court's discretion when dealing with failure to comply with an order. Instead of having the power to impose interim sanctions and to continue the order, the court would have no alternative but to revoke the order and sentence the offender for the original offence.
As Roseanna Cunningham, Pauline McNeill and Stewart Stevenson have indicated, the nature of the offenders who are likely to be subject to drugs court orders is such that positive tests and other lapses are not uncommon. For the order to be successful, it is surely important for the courts to have the option of ensuring that the offender remains subject to the order, and therefore in drug treatment, for as long as possible. It is the drugs court that is in possession of the information relating to any failure by an offender to comply with a condition of the order, and it is the drugs court that should decide at what stage sanctions should be imposed and, if necessary, at what stage the order should ultimately be revoked.
The various orders are not soft options, and offenders who might think that they can work the system are very quickly found out. The pre-review meetings that are held between the sheriff and representatives of the drugs court team involve detailed discussions of the offender's progress and response to the order concerned. The review hearing allows the sheriff the opportunity to engage in direct dialogue with the offender, in the presence of his solicitor. Both the offender and his solicitor have the opportunity to respond to any concerns that are raised by the sheriff about the individual's progress or commitment.
Given the intense nature of the drugs court process, the sheriff will be able to detect very quickly whether the offender has what it takes and is showing willingness to get through the order. It should be the sheriff who ultimately decides what action requires to be taken at whatever appropriate stage in the process. Introducing mandatory cut-off points would serve only to undermine the intention of the drugs courts. For those reasons, I ask Mr Aitken to withdraw amendment 38.
One or two interesting points have been made in respect of amendment 38. I point out to Roseanna Cunningham that our proposals do not involve automatic sentencing. The person who would have total control in this instance is the offender—the drugs court client—himself. The offender is being given opportunities, initially by dint of the fact that his case has been sent to the drugs court, and he is being asked to comply with the order. He is being allowed two failures. By any standard, that is fairly reasonable.
Pauline McNeill said that the disposals are imaginative and innovative. I have no difficulty with those descriptions but, if the procedures do not work, it does not matter how imaginative or innovative they are—and the system is, to an extent, failing to operate at the moment, judging from the day when I made my visit to the drugs court. Of the 14 cases that were dealt with, there was only one in which the accused person had complied fully. Some breaches were minor and would not necessarily have brought about a sanction under the provisions in amendment 38. In other cases, there were breaches that would have been, and indeed should have been, dealt with in that way.
We would all be concerned if the drugs courts failed in any way. I know that Bill Aitken is not against the existence of the drugs courts, and that he is just saying that we should look at the failures. Why did he choose the figure of three relapses? What is his evidence to suggest that that is the point at which it should be deemed that the offender has failed? What is Bill Aitken's research behind that?
I thank Pauline McNeill for giving a fair encapsulation of my views and attitudes in this respect. The figure three was selected not arbitrarily, but on the basis that two failures would seem to be a reasonable criterion to apply. Amendment 38 does not demand absolute compliance; it gives the individual the opportunity to fail twice, and surely that is reasonable in the circumstances. Had a certain individual not gone to the drugs court, he would almost inevitably have had a six-month prison sentence imposed. The offenders concerned really should comply fully with the terms of their orders.
Surely it is for the sheriff to decide how many chances someone who has abused drugs should get. That should not be specified in statute.
I hear what Maureen Macmillan says. However, in this area, as in many others, Parliament needs to give direction. That is the purpose of amendment 38. We should let sheriffs know that breaches must be dealt with much more seriously, although not in a draconian manner. Surely that is not too much to ask, given that we would be allowing offenders to fail twice but still meet the terms of an order. That is why I am more than happy to press the amendment.
Stewart Stevenson mentioned the definition of reasonable excuse, but that is self-evident. No matter what misfortunes we have suffered in life, each of us has an element of personal responsibility. A drug addict still has personal responsibility. Reasonable excuse would mean illness, accident, family bereavement or a plethora of other justifiable reasons. The matter is quite straightforward.
The question is, that amendment 38 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Davidson, Mr David (North-East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (South of Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Goldie, Miss Annabel (West of Scotland) (Con)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Johnstone, Alex (North-East Scotland) (Con)
McCabe, Mr Tom (Hamilton South) (Lab)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Young, John (West of Scotland) (Con)
Against
Adam, Brian (North-East Scotland) (SNP)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gibson, Mr Kenneth (Glasgow) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North-East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McGugan, Irene (North-East Scotland) (SNP)
McLeod, Fiona (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Paterson, Mr Gil (Central Scotland) (SNP)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robison, Shona (North-East Scotland) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow) (SNP)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Welsh, Mr Andrew (Angus) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Wilson, Andrew (Central Scotland) (SNP)
Abstentions
Tosh, Mr Murray (South of Scotland) (Con)
The result of the division is: For 14, Against 91, Abstentions 1.
Amendment 38 disagreed to.
Section 37—Restriction of liberty orders
We must get through three groups in less than half an hour. If the debate on this group can be kept tight, that will leave us time to deal with the amendments relating to anti-social behaviour orders.
Amendment 39 is in a group on its own.
Restriction of liberty orders definitely have a place in the judicial set-up. On this issue, there is not much difference between what the Executive intends and what we would wish. However, I would be concerned if RLOs were used inappropriately.
RLOs are an ideal disposal for the sort of individual who gets tanked up at the weekend and commits crimes of disorder and vandalism. A period of being confined to his home at weekends might well get the message through to such a person. It would also enable him to maintain employment, which would not happen if he were awarded a custodial sentence.
Petty thieves could also benefit from restriction of liberty orders, although I have no doubt that some would simply switch from night-time to daytime theft. Nevertheless, I am happy that these disposals should be available in such cases.
The restriction that I seek to introduce is that RLOs should apply only to those who have been convicted on a summary complaint. Persons convicted of serious or sexual assault, for example, would not be eligible for RLOs and their cases would invariably be taken on indictment.
Protection of the public must always be our primary consideration in the passing of legislation or the imposition of penalties. RLOs have a part to play in that set-up, but we must ensure that we do not put the public at unnecessary risk by allowing people to be released who would otherwise be in prison. The safety of the public would be prejudiced if those who would not normally be subject to a non-custodial disposal were released.
By all means, go ahead with the tagging process, but it must be recognised that some cases will involve taking a chance and we should not be taking that chance. Sexual offenders and those who are guilty of serious assault or other indictable offences should not be subject to restriction of liberty orders.
I move amendment 39.
A similar amendment to amendment 39 was lodged at stage 2. In some respects, that was a probing amendment that sought more detail on the types of offences for which the courts were imposing restriction of liberty orders. I provided information on that to the convener of the Justice 2 Committee on 5 February.
The figures suggest that the courts currently use restriction of liberty orders appropriately. Examination of the figures shows that between 1 May—the national roll-out—and 31 December 2002, 10 per cent of RLOs were imposed for offences involving assault. The largest percentage of RLOs were imposed for theft and fraud, and 14 per cent were imposed for breach of the peace.
Restriction of liberty orders were introduced as part of a framework of custodial disposals to provide the courts with an alternative just short of a custodial sentence. As was stated at stage 2, the pilot projects and the support from respondents to the consultation on the future of tagging in Scotland agreed that experience had demonstrated that RLOs were being used for high-tariff offenders whose offending patterns meant that they were at risk of custody.
Ministers have the power to prescribe the class or classes of offender in respect of which an RLO might be made, so there are powers to limit or define a class or classes. We might wish to exercise, or propose to exercise, that power in the light of future experience. However, at present, I recommend that we resist restricting the use of the orders.
Bill Aitken's amendment 39 would, in effect, reduce the target group and limit the options that are available to the court. It would also result in removing the option of an RLO from indictment cases in sheriff courts and totally from the High Court. To date, three RLOs have been made by the High Court: for assault and robbery, and for contraventions of road traffic and misuse of drugs legislation. No doubt the judges who imposed those sentences did so after giving great care and consideration to whether they were appropriate.
We do not believe that it would be appropriate at this stage to remove the option for indictment cases. Rather, we want to ensure that sentencers have a robust range of alternatives to custody available to them. The RLO is an addition to that range and, being punitive and invasive, is certainly not a soft option. I ask Parliament to bear it in mind that the court is in possession of the facts and the circumstances of each individual case and will take account of those and the risk that is posed by the offender to the community when imposing a sentence. I ask Parliament to resist amendment 39.
Mr Aitken, do you require to say any more?
I do not think that there is much more to be said. There is a clear difference between us and I want to put it to the vote.
The question is, that amendment 39 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Davidson, Mr David (North-East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (South of Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Goldie, Miss Annabel (West of Scotland) (Con)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Johnstone, Alex (North-East Scotland) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Tosh, Mr Murray (South of Scotland) (Con)
Young, John (West of Scotland) (Con)
Against
Adam, Brian (North-East Scotland) (SNP)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gibson, Mr Kenneth (Glasgow) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North-East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McGugan, Irene (North-East Scotland) (SNP)
McLeod, Fiona (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Paterson, Mr Gil (Central Scotland) (SNP)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robison, Shona (North-East Scotland) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow) (SNP)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Welsh, Mr Andrew (Angus) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Wilson, Andrew (Central Scotland) (SNP)
The result of the division is: For 15, Against 92, Abstentions 0.
Amendment 39 disagreed to.
Section 38—Interim anti-social behaviour orders
Amendment 4 is grouped with amendments 93 and 109.
I rise to speak to and move amendment 4 in my name, and to speak to Executive amendment 93 and amendment 109, also in my name.
I cannot overstate the importance of this part of a bill that is of central importance to improving the quality of life of people across Scotland. I acknowledge the key role of ordinary constituents who have fought to have their voices heard and for recognition of their experience of anti-social behaviour. No longer is such behaviour dismissed as just a neighbourhood dispute. We now acknowledge the huge impact of anti-social behaviour on people's health and well-being, and the impact that it can have on the quality of life of ordinary families. In the worst cases, people are forced to move from their homes.
In this Parliament, we have the opportunity to express an opinion on many things, but we have a great power to listen as elected representatives to what ordinary people are saying, to draw general conclusions from that experience and to act to address the problems. I am grateful to have that privilege.
The problem of anti-social behaviour has been acknowledged through the development of anti-social behaviour orders. However, there is a recognition of the weakness in the way in which the orders have been implemented. They have not been as effective as we may have hoped. I seek to address that with amendments 4 and 109.
I start with a couple of caveats. We know that anti-social behaviour is not the province only of those in council housing or, more broadly, in the socially rented sector. It is a problem across sectors, including the owner-occupied sector, and therefore needs to be addressed not just through good housing management, but through the work of the police and local authorities, and by changing the attitudes of the courts and the judicial system. However, the vast majority of ASBOs that have been implemented have been against council house tenants, and we have to recognise that that is a weakness.
I am glad that the Executive has lodged an amendment that seeks to address that by giving power to other social landlords to promote the use of ASBOs, but equally it has said that they must do that in conjunction with the local authority, so that we will still have a practical approach. In the past, I have highlighted the problem of the private sector and I seek an assurance from the minister that that will be addressed. We may not expect the use of ASBOs to be promoted, but good housing management and management of complaints by private-sector landlords can inform the work of local authorities in promoting the use of ASBOs in the private sector.
Amendment 4 addresses one weakness in the development of ASBOs. One problem that has been identified is the length of time that it takes to implement an anti-social behaviour order. That problem undermines the confidence not just of those who need the protection of ASBOs, but of those who are considering their options in tackling anti-social behaviour. It is a problem if that delay acts as a deterrent to people using the tools that are available to them. That has been addressed in the bill through the establishment of interim anti-social behaviour orders, but there is still an opportunity to create delay. My amendment 4 seeks to address the potential to delay that is created by section 38, which states:
"after considering any representations made by or on behalf of that person".
That does not identify a time scale, and would allow someone to simply not turn up or use other means of delaying.
Interim anti-social behaviour orders can be speedy and effective without reducing people's rights. We should view them in the same way that we view interim interdicts. Such orders will not diminish the rights of alleged perpetrators of anti-social behaviour, since cases will still have to be made and determined, but they will allow for offending behaviour to be halted while a determination is being made. Members may wish to compare that with how we respond to domestic abuse cases.
The other amendment in my name—amendment 109—addresses the persistent problem, which was identified to me, of the police, local authorities and all relevant agencies sharing information. The issue is about taking a varied approach to having responsibility for addressing anti-social behaviour in a local area. Sharing information will clearly help. The Convention of Scottish Local Authorities argued in favour of that at stage 1. The Scottish Federation of Housing Associations is in favour of it. The Auditor General recommended in an Accounts Commission report that appropriate systems must be developed to enable information to be stored and transferred between all agencies involved in youth justice. It is clear that that is also true of anti-social behaviour.
There is a need for more uniformity. Action in this area should not be dependent on the good will of individual police officers and officers in housing departments. The amendment would allow for proactive work, looking at issues such as acceptable behaviour contracts, and it is important to develop local strategies that include information sharing. That is what amendment 109 seeks to do. By supporting amendments 4, 93 and 109, the Scottish Parliament can send out the message that we take anti-social behaviour seriously, and that we are giving the agencies that are trying to reduce or prevent such behaviour adequate tools to do their job.
I move amendment 4, and urge support for amendments 93 and 109.
Johann Lamont has been tireless and determined in her efforts to see action taken to curb anti-social behaviour in the communities that she represents. Much of what she has said on the issue has reflected the views and concerns that other members have expressed in committee and in debates. Johann Lamont is right to say that the people whom she represents and whom we represent want to live in peace and quiet with some dignity. They need to be supported and protected from the minority of individuals who seek to make their lives a misery.
As Johann Lamont said, members have expressed some concern that anti-social behaviour orders are not as effective as we had hoped that they would be. The Executive acknowledges that there is scope for improving how we tackle the problem, because we know that the orders must be effective to protect the people whom we represent.
Interim anti-social behaviour orders were part of the bill from the outset, but we are now moving to support a wider range of measures to tackle anti-social behaviour more effectively. At stage 2, members made clear their concern that interim ASBOs could become subject to delays similar to those that full ASBOs have experienced. That is a worry, because such delays have undermined ASBOs' effectiveness and people's confidence in the obtaining of ASBOs.
We have reflected on members' comments and considered European convention on human rights implications and other issues. We are satisfied that, provided that the right to intimation is maintained, the removal of the explicit reference in section 38 to
"any representations made by or on behalf of"
the respondent before an interim ASBO is granted has no ECHR implications. The court still has discretion to consider any representations that are made following intimation.
In supporting Johann Lamont's amendment 4, I acknowledge that it will have the same effect as Stewart Stevenson's stage 2 amendment 44 would have had.
Amendment 93 will add a new section to the bill. We will extend the power to apply for ASBOs and interim ASBOs to registered social landlords. That will make it easier for registered social landlords to obtain ASBOs against persons who behave anti-socially and who reside in, are otherwise on or likely to be on or in, or are likely to be in the vicinity of, an RSL's properties.
It is important to extend the right in that way. Many good social landlords throughout Scotland want to protect their tenants. The housing stock transfer in Glasgow will mean that Glasgow's public sector housing will comprise solely properties that are managed by social landlords. Those landlords will have the opportunity to tackle anti-social behaviour by private residents in the vicinity of their properties. As Johann Lamont suggested, some complications make it more difficult to tackle such behaviour in places such as the west ends of Glasgow and Edinburgh, but we will reflect on those issues.
Although anti-social behaviour orders can be made against persons in any housing tenure, most ASBOs have been made against local authority tenants. The perception among social landlords has been that local authorities do not attach enough priority to cases that involve social landlords' tenants. Whether or not that perception is justified, we want to take immediate steps to make it easier to apply for ASBOs.
Like local authorities, social landlords will have to consult the police before applying for an ASBO. The local authority will have to be notified of the social landlord's intention to apply for an ASBO. We will issue guidance to all relevant authorities before the new powers are brought into effect.
I commend Johann Lamont for amendment 109. We make clear our commitment to joint working. At stages 1 and 2, some members complained that local authorities, the police and other agencies do not work closely enough together and do not share information enough. We think that many improvements have been made to such practices in recent years, but through the bill, we will make clear our intention for that joint working to take place. Local authorities and the police are key agencies in dealing with such behaviour and the requirement to prepare a joint strategy will go a long way towards ensuring a co-ordinated approach from organisations.
Together with our housing legislation and initiatives such as the introduction of community wardens, the amendments can have a major impact on the anti-social conduct that, cumulatively, causes considerable alarm and distress to many in our communities.
I commend Johann Lamont for her amendments. I understand, and am wholly sympathetic to, her concerns about the extent of anti-social behaviour in many of our communities. She may be speaking for her constituents in Glasgow Pollok, but she echoes the views of many MSPs throughout Scotland.
I have to finish the group by 3.30 pm. I hope to fit in Miss Cunningham and Mr Aitken, but I may not be able to fit in any of the other eight members who have indicated that they want to speak.
I rise to support the three amendments in the group. The intention behind amendment 109 is very good and the SNP will support it. It might have been more helpful if we were not preparing ASBO strategies but implementing them—we might have to return to that issue.
Amendment 93 is very important. I know that the social landlords in my area want the provisions that are contained in the amendment and I am sure that that is the case across Scotland.
I thank the minister for explaining why my colleague Stewart Stevenson's equivalent amendment to amendment 4 was not accepted at stage 2. The minister's explanation about the ECHR was important, as there was a bit of a puzzle over why amendment 4 was accepted when Stewart Stevenson's amendment was not.
Thank you. That contribution was helpful.
At the risk of destroying Johann Lamont's street cred for evermore, I have to say that her contribution was particularly welcome and worth while. Johann Lamont operates at the sharp end of politics and I know that the issues under discussion have been particularly manifest in her constituency. If ASBOs are to work, they must have an immediacy about them. Johann Lamont's amendment 4 will improve matters and amendments 93 and 109 are also acceptable.
That contribution was also helpful. It allows two short contributions of a minute each.
I have a question about amendment 93. One or two of the smaller housing associations fear that the resource implications could be quite significant for them. Amendment 93 contains provisions that would lead to expensive actions for such housing associations if they go any distance down the line. Has the minister given any thought to giving assistance to the smaller associations to deal with the provisions that are contained in amendment 93? If not, could the partnership arrangement with councils that is being thought about be applied in this connection?
The lives of some of my constituents in central Fife are an absolute misery because of anti-social behaviour. A whole community is affected, but Fife Council has yet to get the alleged perpetrators to court. There has been a delay of almost seven months mostly because of the failure of the legal aid application to be processed quickly enough. The situation is simply not good enough.
Interim orders are an immediate measure and the granting of an interim order may in itself help to modify the behaviour. Delaying the granting of an interim order would allow and encourage the alleged perpetrators to increase the level of harassment and violence—that is the case with ASBOs. Johann Lamont's amendment 4 is necessary; without it, interim ASBOs would be rendered useless.
If my street credibility were to be destroyed by Bill Aitken commending me, it would have been destroyed a long time ago. The Labour party and Labour members have fought long and hard on the issue of crime and disorder in our communities. It is a matter of justice, social justice and equality. In representing my community, I would not be able to do anything other than fight on that issue.
We need to consider the expense that is involved in ASBOs. Even if ASBOs were pursued only by local authorities, the housing associations would continue to have to do the work to gather the information—there is no change in the situation. I hope that the minister will look at the operation of ASBOs in practice to make it as easy as possible for those who wish to use this means of addressing the problem.
Amendment 4 agreed to.
Amendment 93 moved—[Mr Jim Wallace]—and agreed to.
After section 40
That takes us, just in time, to group 12, which deals with the adjournment of certain cases. We have five minutes to consider amendment 79, which is grouped with amendment 58.
Amendment 79 is supported by Hugh Henry and I thank the Executive for that support.
Amendment 79 is designed to tackle a gap in the law, which was recently debated at Glasgow sheriff court in relation to a community service order. The amendment refers to cases in which the offender has failed to comply with an order.
It has been brought to light that there is a gap in section 239 of the Criminal Procedure (Scotland) Act 1995. The problem arises when there is an apparent breach in an order such as a community service order, a probation order, a supervised attendance order, a restriction of liberty order or a drug treatment and testing order. The provision would apply in only a small number of cases, but, crucially, those would be when the offender denied the breach. The effect of the provision would be to allow the sheriff to detain the offender, if appropriate, or to order the offender to appear before the court to put their case.
Amendment 79 is a minor tidying-up amendment, but it is an important one. Without it, sheriffs will not have the power to detain those who do not comply with the orders that are mentioned in the amendment.
I move amendment 79.
Amendment 58 makes a slight alteration in the provisions for adjournment between conviction and sentence. Most adjournments are to allow time for preparation of further reports on the individual who is to be sentenced. Sometimes those reports take longer than three weeks to prepare. At present, when reports are not ready within three weeks, a convicted person who is remanded in custody must be brought back to the court for remand to be renewed. Bail cases are slightly more flexible, and adjournments may be for
"four weeks or, on cause shown, eight weeks."
Amendment 58 simply brings the time limits that apply in custody cases into line with those that apply in bail cases.
In many cases, it is obvious to the judge that more complex reports will take more than three weeks to prepare. The tighter time limit in relation to those who are remanded in custody results in a considerable number of repeated adjournments. Those result in inconvenience to the convicted person—who must be brought from prison to be present in every case, even for a five-minute hearing—and considerable cost to the public purse. The amendment should reduce the number of unnecessary procedural hearings by giving limited additional flexibility in custody cases.
I am happy to support amendment 79. Through her amendment, Pauline McNeill has achieved helpful clarification in establishing the power of courts in dealing with offenders who, for example, are contesting alleged breach of their community sentence when the court wishes to adjourn to enable inquiries to be made or to determine a more suitable way to deal with the offender. At present, there is considerable doubt as to whether the courts have those powers. Placing the provisions on a statutory footing ensures that sentencers can deal with such situations with consistency and confidence.
Amendment 79 is a worthwhile amendment, and Pauline McNeill has done well to spot a not-too-obvious flaw in the 1995 act. At present, there is a real gap in respect of the ability of courts to remand those who breach orders. One of the concerns that we have with regard to alternatives to custody is the fact that breaches are seldom reported and seldom acted on. Amendment 79 is welcome, and the fact that it is supported by Hugh Henry introduces a welcome degree of realism, albeit uncharacteristic, on his part.
Amendment 79 agreed to.
Section 43—Physical punishment of children
Amendment 6 is grouped with amendments 94, 95, 41 and 43.
There appears to be a basic mistrust of Scotland's parents and courts on the part of the Executive. It seems that, despite his embarrassing withdrawal over the smacking episode, Jim Wallace is still determined to deny parents the right to discipline their children in accordance with reasonable rules that they would impose in their own homes, subject to the fact that the courts have always taken a robust stance against those who seek to impose unreasonable chastisement on their children.
In its stage 2 deliberations, the Justice 2 Committee considered significant case law. In every instance, the sheriffs and judges got it absolutely right. The courts ruled, for example, that striking a youngster on the head is an assault—rightly so. In the case of the Hamilton schoolteacher who spanked his eight-year-old daughter because she had become terrified on a visit to the dentist, the sheriff ruled that that was assault. I submit that, in the circumstances, the sheriff was absolutely correct to do so. When parents lay into their children with belts, sticks, canes or miscellaneous instruments, the courts will invariably find that to be assault.
Everyone is anxious to avoid child abuse. Sadly, in the past two weeks there have been two classic cases of it. It is difficult to see how the legislation would have prevented such incidents.
The fact is that Scottish parents are invariably caring, responsible people who are intent on bringing up their children in a loving and caring environment in which discipline probably plays a very minor part. Some of the thinking behind the Executive's legislation would suggest that many parents are at best irresponsible and at times little short of sadistic. That is clearly not the case. The Executive should leave the matter to the good sense of parents and do so in the knowledge that the courts have not failed Scotland's children.
The amendments lodged by Mr Hamilton and Ms Cunningham demonstrate exactly the difficulties that will arise. For example, how does one define shaking with unreasonable force?
Will Mr Aitken apply the same logic to housebreaking? Given that most householders do not break into their neighbour's property, but respect their neighbour's property, should we dispense with the laws of housebreaking and burglary?
That is an entirely spurious and utterly silly contribution. Mr Fitzpatrick must try harder. He knows full well that that has no relevance to what is proposed in amendment 6.
I will return to the more constructive contributions from the SNP. Amendments 94 and 95 are well intentioned, but they underline how ludicrous the situation is. If the bill goes through unamended—or even with the benefit of amendments 94 and 95—it will largely be unworkable. All law is based on reason and common sense. The existing situation is eminent common sense. The children of Scotland can in almost every case rely on their parents to behave in a reasonable manner and when their parents do not behave in a reasonable manner, the courts will intervene. They have been doing so, properly, for hundreds of years and there is no reason to assume that they will not do so in the future.
The issue of shaking, for example, is fraught with difficulties. If one shakes a six-week-old baby that would be totally irresponsible, and criminal and would be assault. However, what about the 5ft 2in mother who shakes her 5ft 10in son, who is 15 years of age, because she finds him in possession of an ecstasy tablet? Do members seriously think that that would be an assault and that the matter should go before the court?
The Justice 2 Committee's report said that the Executive ought to consider that important point. However, if one looks at section 43 as a whole, is it not clear that the circumstances and the age of the child should be taken into account? When prosecutors are making that determination, they will consider the whole of the act and if the situation involving a 6ft boy and a 4ft 2in mother comes about, they can apply the common sense of the law.
That is perfectly true. It would be a discretionary matter for the fiscal. However, the legislation is currently in place to cope with such situations. Why create a problem where none exists? That is what the bill would do.
Bill Aitken seems to suggest that we should turn a blind eye to this kind of abuse.
I am not for one moment suggesting that we should turn a blind eye to parents assaulting their children. I am saying firmly that I believe, based on experience and on the Justice 2 Committee's study of the case law, that the current law is perfectly adequate to protect children against abuse. I see that Cathy Peattie is shaking her head; we will have to agree to differ on the point.
If the bill goes through with its current provisions, there will be all sorts of difficulties and interesting appeal points. The usual outcome of that is to make judges famous and lawyers rich and to bring the law of Scotland into disrepute.
I move amendment 6.
If this makes lawyers rich, I might support it in my future career.
This is perhaps the most controversial part of the bill. It has had a chequered history throughout the committee process. I return to the position that I held at stage 2, namely that many of the measures that are proposed are not strictly necessary, because the matter is already covered by the law. I accepted the argument that the Executive gave us then, to the effect that if there was nothing to be lost, there was no reason not to bolt it on to the bill. That is a strange way to go about legislating, but in the spirit of consensus we are going down that route.
The first option that is before members is the bill as it stands. I cannot see how that might be workable, given the problem mentioned by Bill Aitken of defining shaking and the nonsense stance whereby a 15-year-old boy could be treated in the same way under the law as a two-year-old child. That is daft.
To take the second option and remove the section altogether, as Bill Aitken proposes, is equally daft. The committee has accepted that there is nothing to be lost by putting this into statute. Let us build on that position.
Amendment 95, in the name of Roseanna Cunningham, offers the way through this; it aims to do something about the definition of shaking. Her attempt to add the factor of reasonable or unreasonable force strikes me as eminently sensible. It would require the court to look at all the circumstances to decide what is reasonable and what is not.
Has Mr Hamilton conducted an assessment of any medical evidence as to what might comprise reasonable force in the shaking of an infant child? If we want to end shaken baby syndrome, is it not the case that we must stop people shaking infant children?
There are two problems with that. First, Mr Fitzpatrick is right to say that it is difficult to define what is reasonable and unreasonable, but that is a matter that goes right across the Scottish legal system and which is addressed by the courts every day. It is not beyond the wit of mortal man, or the wit of the courts, to decide what is reasonable or unreasonable in all the circumstances of the case. Secondly, it is really not good enough for a legislator to come forward with an emotional case, on which we all agree, and then to say that that somehow sweeps before it all reason and all tempering of legislation. That is not legislation that I would wish to be party to.
Amendment 95, although not perfect in Mr Aitken's view, offers us the way through. It gives us the opportunity to consider a reasonable moderation of the bill. I do not think that the bill as it stands will make for good law, and the last thing that the Parliament needs is more law that could be described as unnecessarily divisive and daft. Section 43 deserves our support overall, but unless we do something about the definition of shaking I am afraid that the section will not carry support throughout the country.
I have some sympathy with Bill Aitken's comments and those of my colleague Duncan Hamilton in addressing themselves to the generality of section 43 and to the question whether we should really be having such debates. Once we open up the debate on definitions, we get to precisely the problem that we were all concerned about, arguing about what is in, what is out, how it will be construed and what it will mean in court.
With respect to Brian Fitzpatrick's intervention, the situation that is being cited as the most serious one—the serious shaking of infant children to their severe injury or indeed to their death—is already dealt with in our courts from year to year. It is not entirely fair to use the most extreme, emotive example, particularly when it is one that the current law deals with, when we are trying to consider some of the definitions of what is already in section 43.
I am listening carefully to the arguments as they are being put. Would Roseanna Cunningham like to define for members the reasonable shaking of an infant? If she can do that, the Parliament should listen to her, but if she cannot, what she is proposing is not reasonable.
With respect to Richard Simpson, that is not what the bill says, nor what the sheriff will be looking at, and it is not what amendment 95 says. Amendment 95 uses the phrase,
"with use of unreasonable force".
Reasonableness is something that will take into account all the facts and circumstances.
I suspect that no reasonable force could be used on a six-month-old child, but that reasonable force might very well be used on a 15-year-old child. There is a difference. The test of reasonableness is used daily in our courts and is a test with which all our judiciary and all those who practise in our courts are comfortable and familiar. It does not come out of left field. What amendment 95 proposes is not particularly unusual. The courts are already completely familiar with the test and will accept it as perfectly legitimate in the legislation, as it means that the test will always be in the face of the facts and circumstances that are before them in particular cases.
I heard the general argument on the issue at an earlier stage in the bill's proceedings and am not entirely sure that there is much point in going down the line that Bill Aitken is going down or indeed that my colleague Duncan Hamilton wants us to go down. We need to focus on specific areas in which there is dubiety and real, concrete concern that has real legitimacy behind it. I commend amendment 95 as a way through such dubiety and concern. I suspect that the vast majority of us wish that we were not having such debates at the moment, as it seems that we are getting into a mire that perhaps the Parliament would have been better not to have got into in the first place. However, as we are debating the issue, let us try to put in the bill something that looks like it has some sense for all sides of the argument.
I wish to press amendment 95.
I should say that 10 members want to speak on this group of amendments. Members should be as brief as possible.
My views on the subject are well known and it will be no surprise that I rise to speak against all four amendments to the section.
Section 43 seeks to clarify further the existing law—that is not in any doubt and has been constantly stressed at stages 1 and 2. I strongly disagree with what Bill Aitken said about the existing law, as defined by the Children and Young Persons (Scotland) Act 1937, being adequate and applied equally by our courts. I have previously stated that, in my professional experience, I have come across a case of a seven-year-old child who had clear injuries to their bare buttocks that were caused by the buckle end of a belt. There was a prosecution, but the court found that the injuries were incurred in the course of reasonable parental chastisement.
That is the problem with the definition of reasonable—as Brian Fitzpatrick and Richard Simpson mentioned, that problem is at the heart of amendment 95. There is almost a duplication of the difficulty. The court would be asked to define what is reasonable and what is unreasonable. Putting in the bill
"shaking with use of unreasonable force"
presupposes that it is okay to shake with reasonable force. That strikes at the example that Brian Fitzpatrick used in respect of an infant being shaken. We should leave section 43 as it is, as its intention is to clarify the existing law.
The question of reasonableness or unreasonableness will emerge throughout the debate. Why is it that, uniquely, in the area of law in question, Scottish courts would be unable to reach a decision using all the facts of a case as to what was reasonable or unreasonable?
As I have indicated, the problem is the existing law. In the 1937 act, there is a problem with reasonable as opposed to unreasonable—that is where the definition of reasonable parental chastisement comes from. Part of the difficulty is that the Executive has listened carefully to the views that a majority of members have expressed and is going for a halfway house. We have got ourselves into difficulties and I do not see the point in compounding such difficulties by agreeing to another amendment to the bill that again uses the definition of what is reasonable as opposed to unreasonable.
In recent weeks, we have spent a considerable amount of time considering the Land Reform (Scotland) Bill, which secures in statute law rights that we believe that we had. In many ways, to reject putting into statute law through this bill things that we believe already exist out there in another form is entirely misplaced. If today is an opportunity to restate and make it clear where we stand on the physical chastisement of children, we should take that opportunity.
I also have a personal dilemma. As a nurse, I had three people with brain damage in the ward in which I worked. There were different sources for that brain damage, but in two cases the brain damage had resulted from physical trauma. [Interruption.]
Order. For some reason, there is too much noise in the Liberal Democrat section of the chamber.
A practical difficulty is that someone may exercise reasonable force in shaking someone without knowing that the person has a particular vulnerability associated with being shaken. That might happen even to a 15-year-old. A thin skull may crumple under a light tap or after reasonable shaking. Frankly, the only safe way to avoid unreasonable damage to people is to avoid shaking altogether.
I am afraid that, to some extent, I part company with my colleagues on the amendments, as I have reflected more fully on the matter over the considerable period that we have taken for our consideration of the bill and after hearing the evidence, which was coloured by my personal experience.
Rather than repeat the points that Bill Aitken made, I want to look back at the reasons why the Parliament was formed. I am told that the Parliament was set up because we wanted to get nearer to the people. I have therefore decided that, in this debate, I will use one or two of the multitude of letters that I have received about the issue.
Members will realise that, as a South of Scotland regional member, my responsibilities go into the realms of constituency MSPs. I make no apologies for picking up on one of Cathy Jamieson's constituents, Helen Muirhead, who wrote:
"This Bill—should it be passed—would see normal loving parents being prosecuted for trivial incidents.
I am a mother of 5 healthy and well-balanced children. If this Bill had been passed when my children had been younger then I would have been prosecuted."
That is typical of many letters that I received.
Another letter that I received was sent to Irene Oldfather by James Davidson, who wrote:
"It seems to me that if this Bill goes through as it stands it will Criminalise parents … as it takes no account of trivialities."
I also received a letter from Jessie McMahon, who is Karen Gillon's constituent. Mrs McMahon wrote:
"As the wife of a Church of Scotland minister, mother of 6 grown-up children, and a doctor retired from working for 19 years in Community Child Health"—
I draw Stewart Stevenson's attention to the fact that Mrs McMahon worked in community child health—
"I believe the proposed legislation would result in harassment and unjust conviction of normal, caring, conscientious parents."
Members need no further words of mine. I will simply stick by the words that I have read out and suggest that Bill Aitken's amendment 41 has got it right.
There is a touch of disproportionate outrage in the amendments that have been lodged by Ayatollah Aitken and others. Bill Aitken would send out the message that some MSPs believe that it is justifiable to hit children with implements or to shake babies so as to cause brain damage or to bash them across the head.
Following up on Phil Gallie's comments, I also received one or two of those letters. One of the letters indicated that, in the view of a loving parent of the kind that Phil Gallie mentioned, a slipper or a wooden spoon could be described as a benign instrument with which children might be hit. I ask members to bear that in mind.
I do not know how much clearer we need to be, but Conservative members are not in favour of abusing or battering children. There is a distinction to be made. Please do not portray us as thinking that it is all right to batter children. That is not right in anybody's book.
However, the argument has been whether we should apply certain regulations to parents or whether, to take Bill Aitken's approach to the matter, there is an area of life in which the state should not interfere. I think that the problem of child abuse in society is such that we must use the bill to send out reasonably clear messages about the position.
Will the member give way?
Sorry, I have only a short time.
The argument that section 43 will lead to the prosecution of loving parents for gently shaking a child's arm is simply not correct. Section 43 creates no new offences and no new penalties; it simply gives children the same protection against violence as adults have. If there is no criminal intent or recklessness, if the assault is trivial or if there is no public interest in prosecution, the procurator fiscal will not prosecute and the courts will not be entitled to convict.
Parents who abuse or beat their children, hit them with implements or cause lasting damage to infants most assuredly will and should be prosecuted. They will no longer have the benefit of arguing that something that would be a serious assault on an adult is justified by the excuse of reasonable physical chastisement when done to a child. That is the clear message that must go out today. I urge members to reject all the amendments to section 43.
I will concentrate on Duncan Hamilton's and Roseanna Cunningham's amendments—I will not waste time on Bill Aitken's.
I hope that members will reflect seriously on the matter and agree with me, and—more important—with the substantial body of medical evidence, that shaken baby syndrome occurs not only in cases of severe or serious shaking, but also where there has been only minimal shaking. Roseanna Cunningham came close to acknowledging that. The only way in which to stop such minimal shaking is to provide explicitly in legislation that one cannot shake one's baby. Our priority must not be 15-year-old rugby lads, but the circumstances of vulnerable young children and babies.
Will the member give way on that point?
In a moment.
In a previous existence, I had a tremendous interest in cases of head and brain injury. I sometimes had to act in the interests of children who had been the victims of what was claimed to be reasonable action when those poor little bundles turned up at Yorkhill hospital and elsewhere. The parents said, "I didn't mean to do that to my baby, doctor," but the child often ended up with lasting head injury and people such as me had to try to put order and organisation back into destroyed young lives. The Parliament can stop such situations today.
We must not listen to the Bible-based nonsense from the far right about implements and the like; we must act responsibly to protect children in Scotland. Every year, 40 or so children in Scotland, 14 of whom are under the age of one, receive non-accidental head injuries. We must do something about that.
Will the member give way?
In a minute.
We have heard much about reasonableness. In another place and at another time we could have a discussion about the jurisprudence of reasonableness. Parliaments around the world have innovated on duties of reasonableness. They have said that there is an absolute duty to comply and they have created duties of reasonable practicability. However, reasonableness is not the be-all and end-all.
Before I sit down, I will let Phil Gallie interrupt.
I go along with what the member says about young babies—the law does not seem to protect them and there have been tragic deaths in recent times. However, can the member point to the part of the bill that mentions young babies? It deals with children up to the age of 16 and, surely, there is a massive difference. If the provisions on shaking had been confined to young babies, Mr Fitzpatrick might have received some sympathy from the Conservatives.
There is no reason to assume that other matters might not come into play in relation to a 15-year-old hulk. I am concerned about young babies, who will be protected under part 7, which deals with the physical punishment of children who are under 16. I would be delighted to have Mr Gallie's support for the protection of such children.
I declare an interest as a subscribing member of the Children are Unbeatable! alliance.
Many of us in the chamber, and throughout Scotland, are deeply disappointed by the dilution and diminution of section 43 during the stages of the bill. At this point, we must say, "No further."
I should like to introduce some evidence to the chamber on the effects of shaking on children and young people—I could have produced similar evidence for the other subsections of section 43. I shall give a definition of shaken baby syndrome, although, at this point, given the references that there have been to 15-year-old hulks, I should remind members that only last week a father was convicted in the United States for shaking his 11-year-old boy to death.
Shaken baby syndrome is the leading cause of death in child abuse cases in the United States. The syndrome results from injuries caused by someone shaking an infant, usually for five to 20 seconds. At this point, I will pause for five seconds to make members aware of how short a time that is.
I shall give members some information from the National Institute of Neurological Disorders and Stroke in the USA, which has described shaken baby syndrome. It says that the baby's brain rebounds against his or her skull, which might cause bruising, swelling and bleeding. That damage is intracerebral and might lead to permanent severe brain damage or to death. It states that prognoses for shaken children are poor. Most children will be left with considerable disability, and retinal damage might cause loss of vision. If the child survives, he or she might require lifelong medical care for brain damage injuries, such as mental retardation or cerebral palsy. To address how we prevent the problem, I shall quote from the National Institutes of Health of the United States, which states:
"Never shake a baby or child, whether in play or in anger."
A baby should never be shaken as reasonable chastisement, and a child should never be shaken with reasonable force.
We are duty bound by morality and by our subscription to the United Nations Convention on the Rights of the Child, in particular by articles 2, 3, 19 and 28. I also remind members that we are not lawyers; we are legislators and we set the tone for the judiciary.
I shall finish with a quote from the zero tolerance booklet that we all received today. It states that, in 1800,
"Judge Buller ruled that a man could beat his wife with a stick as long as it was no thicker than his thumb. It was considered acceptable at this time that men would need to use violence to control and punish their wives."
Change is possible; we must make it happen.
We have heard several passionate speeches and they all dealt with extreme cases. However, it is not extreme cases but trivial cases that concern the people who are writing letters to me and to other members.
I will pose a number of questions to the minister about trivial cases. As Bill Aitken asked, if a mother shakes the arm of her 15-year-old son, will she be committing an offence under section 43(3)? It appears that she will. What will the Deputy Minister for Justice say on the record that will help the courts and procurators fiscal in such cases? Can the minister explain what guidance will be given to procurators fiscal and sheriffs in such cases?
When a parent is prosecuted for assault, the court must consider the circumstances if the assault falls under section 43(1), but if it falls under section 43(3) the courts will be forbidden from considering the circumstances in deciding whether an offence has been committed. Will not that lead to ordinary parents being turned into criminals over trivial incidents?
I would also like to know what constitutes an implement. If a mother throws a pillow at her son, will she be committing a criminal offence in every case? What about a mother who clips her son with a rolled-up newspaper? Is she committing an offence? There is also a point about the scale of prosecutions. How many prosecutions are envisaged in the first three, four or five years after the bill's enactment? People are not concerned by the extreme cases that we have heard about today, but about the trivial cases that take place in every household in the country every day. Are we going to criminalise loving parents? The minister must tell us.
Opinion on the issue was polarised in the evidence that the committee received; indeed, opinion on how to proceed was polarised among committee members. I am not going to criticise the point of view that Bill Aitken and Duncan Hamilton argued at stage 2, that current provisions already deal with the matter. Certainly, the ruling in the A versus UK court case gives sufficient clarity in that respect.
Nevertheless, a majority on the committee accepted that there is a case for reducing the number of circumstances in which parents could claim that action that would otherwise be classed as an assault is justified because it represents reasonable chastisement. I really believe that a blow to the head, the use of an implement or shaking a young child does not come into that category, and that parents should therefore be prohibited from such actions.
Murdo Fraser used the example of a pillow. I am sorry, but a pillow that is used by a parent as an implement to hit a young child on the head could cause severe injury and damage. Murdo should not have mentioned the example.
Will the member confirm whether he thinks that a mother who clips her 15-year-old son on the shoulder with a newspaper should be prosecuted for committing a criminal offence?
One could make the same argument if a newspaper were used against a young child. In that case, such an action would cause damage. I do not accept Murdo Fraser's premise.
I supported the majority view of the committee on the matter because I believe that it is the right view. Amendments 6, 94 and 41 should be rejected.
Amendment 95 has an attraction, and Roseanna Cunningham argued persuasively that inclusion of the phrase
"with use of unreasonable force"
was a way of dealing with this serious issue. I listened carefully to what she had to say, but the purpose of the legislation is to give more clarity on the matter. By agreeing to amendment 95, we would make matters less clear. After all, shaking a young child causes damage, so we should give clarity by completely prohibiting such an action. I encourage members to reject amendment 95.
The debate has been interesting, and members have raised many points that I will not repeat.
The removal of section 43 in its entirety, or the removal of section 43(3), would send out entirely the wrong message. I appreciate what Roseanna Cunningham and other members have said about the law and the courts. However, health visitors, child support workers, nursery nurses and others who are involved with young parents must give a very clear message that certain things are not allowed. Without that, I can tell Parliament that we will be sitting here next year—at least I hope that some of us will be sitting here—discussing the fact that another 14 children have suffered brain damage. I point out to Roseanna Cunningham that, for every 14 such cases that come to court every year, hundreds of cases involving minor damage never come near the judicial system. Without the total clarity in the law that will be provided by the very modest measure in the bill, there will continue to be a substantial number of cases of children suffering minor damage that will never come to court.
As a junior doctor in a paediatric ward, I saw some really severe cases in this regard. However, as a general practitioner, I saw some of the minor damage that had been done to children—sometimes inadvertently—because parents lacked appreciation of the damage that they could cause. Parliament should send out a very clear message that we should not shake children, hit them on the head or beat them with implements. That will serve Scotland well.
I know where the minister is going with the bill on this issue, and I should make it clear that I am on board. After all, we do not want to protect anyone who shakes a child to its detriment. However, I must refer to the bill itself.
Section 43(3) uses the words:
"If what was done included or consisted of—
(a) a blow to the head;
(b) shaking; or
(c) the use of an implement".
I say to the minister that it is clear to what a "blow to the head" and "use of an implement" refer, but I have problems with the word "shaking" because I do not think that it is clear to what that word refers. It worries me that "shaking" does not define anything. I am worried, for example, that mothers and fathers who perhaps take their children on their knees and dandle them are doing a form of shaking. Furthermore, the act of cuddling a baby and shoogling it backward and forward when putting it to bed is a form of shaking.
I am not a lawyer and I do not want to weaken section 43. I am the last person in the world to defend anyone who damages a child, no matter what the child's age, but I want legal clarity about such acts and I do not think that "shaking" provides such clarity. The word "shaking" would protect some people, but it will frighten other people away from doing pleasurable things with their children. I am worried about that.
The member quoted paragraphs (a), (b) and (c) from section 43(3), which refer to a "blow to the head", "shaking" and the "use of an implement". Does Mr Paterson accept that those paragraphs must be read in conjunction with what follows them in section 43—which states that a court must consider the specific acts referred to in paragraphs (a), (b) and (c)—and that together they further clarify the legal position?
Mr Barrie has pointed out my problem, which is that that part of section 43 does not clarify the legal position because there is no definition of "shaking" that mentions what damage that would cause a child. It would be better if a word such as "excessive" were included, which would point out the difference between shaking that damaged a child and harmless shaking. It is unfortunate, but "shaking" is the kind of word that tabloids use to describe an act that damages a child. When we merely cuddle or play with a child we are actually shaking them.
Perhaps I can resolve Mr Paterson's problem.
If Mr Wallace can do so, that will be good. I think that everyone would be pleased with such a resolution.
It is clear that, although Gil Paterson has looked at the bill, he has not looked at section 43(1), which begins with the words:
"Where a person claims that something done to a child was a physical punishment carried out in exercise of a parental right".
Section 43(3) uses the words:
"If what was done included … shaking".
If such shaking were done as a physical punishment, subsection (3) would be activated. I do not think, by any stretch of the imagination, that rocking a child to sleep could be considered to be a physical punishment.
I am trying to illustrate how absurd the use of the word "shaking" is. The minister made the point well that I am trying to make, which is that we must go beyond the use of simple word "shaking", so that we can let people know that they can actually hold their children.
It is always unfortunate if our actions cause alarm to decent citizens. It is clear that many people who have written to members are concerned, so it would be helpful if the minister could make it clear to them that section 43 will not mean that people who, for example, grapple with a hysterical teenager to control him or her and accidentally hit them on the head will go to jail. There might be other relevant examples. People are concerned about the issue and need reassurance. If the ministers will say that courts would be guided not to act too literally in interpreting the bill such that every blow to the head had to be prosecuted, that would be helpful.
There is consensus that the Executive did the sensible thing by removing section 43 as it was drafted. However, it is worth talking through the reasons why the committee chose, on balance, to include the provisions that it did.
In a way, I have to stand up for what the Opposition—apart from Murdo Fraser—is saying because I do not believe for a minute that Duncan Hamilton, Stewart Stevenson or Bill Aitken believe that we should have laws that would provide for injuring children. The difference lies between those who think that the law is adequate and those think that it needs to be strengthened. Murdo Fraser misses the point. The Justice 2 Committee did not want to criminalise innocent parents, which is why we asked for the removal of a complete ban on physical chastisement. The debate is about whether blows to the head, shaking or the use of implements should be mentioned specifically in the act. I think that they should be.
Fiona McLeod talked about a number of sad cases that she has had experience of. Again, however, I must say that I believe that the law of Scotland would allow a prosecution in each of those cases. If it would not allow such prosecution, it should be changed to enable it to do so.
We are not lawyers, but we are legislators and we should approach the bill properly. Subsections (1), (2) and (3) must be read together. It is clear that, in determining whether to prosecute someone for shaking a child, a prosecutor will read subsection (2) and accordingly have regard to
"the nature of what was done … the circumstances in which it took place … its duration and frequency … any effect (whether physical or mental)"
and "the child's age". What could be clearer than that? Subsection (3) must be read along with subsection (2), which means that the law will be absolutely crystal clear.
The law is pretty strong when it comes to protecting children. However, I decided for the avoidance of any doubt—there are cases in which there has been doubt—that it is right specifically to mention blows to the head, shaking and the use of implements. The Justice 2 Committee received evidence from people who thought that using a wooden spoon to chastise a child was acceptable and we were concerned about the shaking of young children. Cases in which the use of any such elements must be defended are rarely trivial. We are talking about what parents should be able to say in their defence.
The Scottish Executive should be commended for the sensible position that it has adopted and which the vast majority of people support. We are debating what provisions should be in the act, not which party is most in favour of protecting children—if we were to take that as the subject of the debate, we would have a dishonest debate.
When we come to vote, we should vote on what we think are the most effective provisions. I urge members to support the present provisions, which were agreed by the majority of the Justice 2 Committee.
We can take it as read that we all abhor violence towards children and that we seek to achieve the same objective, which is to ensure that violence against children is seen as being unacceptable. We are arguing about the best way in which we can word the law to ensure—in so far as we are able—that that happens.
I believe that Roseanna Cunningham's amendment 95 should be supported. As Gil Paterson rightly argued, "shaking" does not have a clear meaning. On the margins, and in relation to trivial incidents in particular, it will be extremely difficult to distinguish between restraint and shaking.
I accept the argument that Pauline McNeill and one or two others have advanced, which is that one must read the section in its entirety. It is perfectly correct to say that the first requirement for prosecution is that something has been done to a child as physical punishment and that the circumstances must be taken into account. That is all correct and good, but what about when a young child has a tantrum in a supermarket and the parent restrains the child by bringing both his arms down to his side, telling him to be quiet and emphasising the point? Is that restraint or shaking?
The problem is compounded by the fact that section 43(3) says that, when shaking is said to have occurred,
"the court must determine that it was not something which … was a justifiable assault".
That seems to remove the element of judgment that is surely best left to the courts. I support Roseanna Cunningham's amendment 95 that would mean that the court would so determine only in cases in which "unreasonable force" was used. To answer Brian Fitzpatrick's question, it seems to me to be perfectly obvious that zero force would be appropriate in the case of a baby that is a few months old but that, in the case of a 10-year-old, a degree of force might be appropriate. Although I understand members' intentions in using examples that we all abhor, such as those that Fiona McLeod used, they are not really relevant to the point that we are discussing.
We all want to send a message to the people of Scotland that violence towards children is unacceptable. Publicity campaigns are the means by which we send messages. When we draft legislation, we must create a form of words that can be enforced objectively and fairly. Above all, we must leave our judges, not our politicians, to be the arbiters of what is or is not a crime in our country.
The policy objectives of section 43 are unequivocal: to provide protection to children; to clarify the law for parents on what constitutes reasonable chastisement and, ultimately, to take steps towards reducing violence in society. The Executive is committed to those objectives and I think that all parties would share them.
It is fair to say that section 43 has provoked strong responses. It has, as Phil Gallie said, provoked a large volume of correspondence, much of which is from ordinary parents as well as organisations and lobby groups. It is also clear that views are polarised. We have heard from some that the Executive's proposals do not go far enough and from others that they go too far. It would be unfortunate if the push and pull of those irreconcilable arguments overshadowed the policy objectives that I have set out, and we were unable to take positive steps to ban the most harmful forms of physical punishment of Scotland's children in the 21st century.
The Executive has listened carefully to parents' and members' views on the proposed outright ban on smacking small children. We responded by removing the specific ban on smacking under-threes, but we have promoted age as a factor that should be taken into account in considering whether a punishment that is administered to a child could be deemed to be reasonable.
The Executive is firmly committed to the remaining provisions in section 43 and believes that they are necessary to clarify the law and protect Scotland's children. The proposed ban on the use of implements, shaking and blows to the head will remove the most harmful forms of punishment. Such actions can be easily misjudged, especially in the emotionally charged circumstances that characterise many physical punishment incidents and cases of serious harm.
We know that the vast majority of parents back the provisions. Phil Gallie talked about parents' good sense, so he might wish to reflect on the fact that, in the System 3 research that was undertaken, 84 per cent of parents agreed that there should be a ban on blows to the head, 79 per cent of parents agreed that there should be a ban on the use of implements and 79 per cent of parents agreed that there should be a ban on shaking. We reflect the good sense of parents that is reflected in those figures.
Will the minister say how he will police the bans throughout Scotland?
That is clear. I will come in a moment to the ogres that have been raised, such as the trivial tap or the rugby hulk who gets shaken by his 4ft 11in mother. I think that, during one exchange, the mother shrank by 3in and the hulk grew by about 3in.
Will the minister give way?
No—I will pick up on the point that Murdo Fraser raised. The Justice 2 Committee's stage 1 report reports what the Crown Office said on the issue.
Paragraph 137 reads:
"The Crown Office took the view that prosecutors would have to consider whether to prosecute on a case by case basis, taking into account the public interest and sufficiency of evidence. ‘Triviality is one of the factors that procurators fiscal are required to consider in the context of any decision to prosecute'. The Crown Agent said that he would be surprised to see any significant increase in the number of prosecutions if section 43 is enacted."
If the good sense of procurators fiscal and Crown agents is adequate for the purpose of interpreting the proposed legislation, why do not we leave it to the good sense of the prosecuting authorities to determine the entire matter in line with the common laws of assault that have applied for 300 years? Why does the minister want to restrict prosecutors in one area but give them discretion in another? There seems to be no logic in that.
On the contrary, there is a considerable amount of logic in that. If discretion is being used as to what is and is not trivial, that is one thing; if discretion is being used when damage has actually been done to a child, that is another. We are trying to protect children; we do not want cases to become a matter of debate in a courtroom when damage has been done, which would be to try to shut the stable door once the horse has bolted.
We have a responsibility to listen to parents in this regard. We have listened, and we have responded. I think that it was Fergus Ewing who said that the matter is more appropriately dealt with by information campaigns than by legislation. I believe that there should be an information campaign on positive parenting and alternative disciplinary tactics, which will be as important as legislation in changing behaviour. However, if we had relied only on information campaigns to stop drink driving, where would we be? We would have had more drink-driving related deaths on our roads. We believe that legislation is necessary.
An information campaign is currently being developed to ensure that parents are informed about the effects of physical punishment, and to guide them towards positive forms of parenting and discipline. As I said, information alone will not suffice. A dual approach of information and legislation is required in order to protect Scotland's children and to clarify the law on what constitutes reasonable chastisement.
Parents told researchers that they did not know what the law was in relation to physical punishment. When parents were asked how much they knew or understood about the current law on smacking, 63 per cent said that they knew not very much and 18 per cent said that they knew nothing about it. Section 43 will make it clear what is acceptable and what is not lawful.
Does the Deputy First Minister agree that we should be reasonably content that most parents—who do not smack or beat their children and do not hit them over the head—are not particularly familiar with the criminal law in relation to such acts, and that we should dispense with the extraordinarily bizarre argument that has been put forward from the Tory benches that, somehow, because ordinary reasonable parents do not take such steps, we should just sit on our hands in relation to parents who do not subscribe to the same sentiments?
One of the most amazing comments from Bill Aitken was almost a suggestion that all parents treat their children wonderfully well. We know from the available figures that, regrettably, that is not the case. It is disappointing that, in lodging amendment 6, Bill Aitken has not reflected on the figures about what parents really think. The research that was published last year shows that an overwhelming majority of Scottish parents agree that hitting children on the head, shaking them or using implements on them should be illegal.
However, I admire Mr Aitken's resilience: he has opposed section 43 from the outset and has stuck doggedly to his opinion throughout. It is unfortunate that the same cannot be said for the amendments that have been lodged on shaking. We are being asked to consider either removing the specific ban on shaking or qualifying it to
"shaking with use of unreasonable force".
No doubt the concerns that have been expressed have been motivated by images of meek mothers shaking great big rugby-playing sons, but such concerns trivialise the issue. At the other end of the spectrum, as was eloquently highlighted by Fiona McLeod and Brian Fitzpatrick, a tired and frustrated mother can with a moderate shake easily damage an infant.
I will quote from the BBC's "Medical notes" web page, which says that shaken baby syndrome
"occurs when an infant is forcibly shaken, usually by the shoulders, causing the child's head to flop back and forward … A baby's head is large and heavy making up about 25% of the infant's total body weight. Its neck muscles are too weak to support such a disproportionately large head.
The force of the head movement can tear blood vessels that bridge the brain and skull, because these are fragile and immature … When shaking occurs, the brain bounces within the skull cavity bruising the brain tissue.
The brain swells, creating pressure and leading to bleeding at the back of the eye."
That was one of the tamer descriptions of shaken baby syndrome. There is a real danger that, by focusing on the trivial, we will lose sight of the critical other end of the spectrum and miss an opportunity in the bill to protect small and vulnerable children from inadvertent but lasting damage that is caused by a forcible shake.
I have no intention of trivialising this matter. However, I pay due regard to what Gil Paterson said about the word "shaking". The minister has tried to address that concern by providing a description of shaken impact syndrome. However, the other evening we saw on television Michael Jackson, a popular celebrity, feeding his child in a strange way that involved incessant shaking—because the shaking is part of feeding the child, it is repeated on a number of occasions. If Michael Jackson were to feed his child in that manner in Scotland after the bill has been enacted, would such bizarre shaking constitute a crime? From the wording of the bill, it is not clear whether it would.
Regrettably, Brian Monteith has trivialised the issue. As I said to Gil Paterson, shaking a child will be an offence if it is done as a physical punishment. I did not see the programme to which Brian Monteith refers, so I do not know whether the shaking was a physical punishment or something else. It would not be appropriate for me to comment on something that I have not seen.
As Brian Fitzpatrick stated, each year 40 Scottish children receive non-accidental head injuries and 14 children aged under one receive severe head injuries as a result of shaken impact syndrome. We do not know whether those injuries started out as misjudged physical punishments, but we believe that the law must protect children from shaking. Once the damage is done, there is little consolation in arguing in court about whether the shaking was reasonable.
How are parents to judge where on the spectrum the division lies between shaking that produces lasting damage and a less harmful shake? We cannot know at what age or stage a child's vulnerability to a minor shake recedes. As Yorkhill hospital's Professor Stone advises:
"there is no such thing as safe shaking or reasonable force."
It would be a sorry day if members of the Parliament were unable to support legislation to ban shaking. I do not subscribe to the view that larger children are punished physically by being shaken or that the courts will be clogged by parents accused of trivial shaking offences. I believe that children need protection from the danger of brain damage through misjudged shaking.
Amendment 95 appears to be motivated by the desire to concentrate on the most severe cases of shaking. However, it would add very little to the existing common law and provides the sort of definition that would make the law unclear. For that reason, I ask the Parliament to reject it. Stewart Stevenson came to much the same conclusion—we cannot always tell what degree of force may lead to damage.
We should say clearly that shaking is dangerous and should not be used on children, as it is impossible to judge its effects on developing brains. Our research shows that parents want clarity and that they believe that shaking a child should be unlawful. I hope that Roseanna Cunningham will listen to parents on this matter, reflect on why the Executive is firmly committed to banning shaking and not move her amendment.
I also hope that amendment 94, in the name of Duncan Hamilton, will not be moved or will be resisted. I do not expect Bill Aitken to withdraw amendment 6. However, the important message that we want to send out about protection of our children would be seriously undermined if we followed the Tory route today.
This has been a mature and measured debate, in which one or two issues have been stressed repeatedly. The issue of shaking has certainly stirred the Scottish Parliament.
Amendment 6 is an attempt to clarify the law, as the law needs to be clarified. The people who should clarify the law are the people who administer the law—the judges of Scotland. Time and again, I have made the point that in the past there has been no significant problem in this area. I listened to what Scott Barrie had to say, but I am surprised that the case to which he referred was not appealed by the Crown. Along with all reasonable people, I believe that the necessary legislation is in place.
Stewart Stevenson and Brian Fitzpatrick—from a professional perspective—pointed out the real dangers that shaking poses. All members accept that. However, Gil Paterson indicated that shaking need not be punitive.
Children are very robust. Some children are wild and enjoy wild horseplay. In such circumstances, inevitably there will be some shaking. The logic of what the minister is proposing is that shaking in a punitive sense would be illegal but shaking that occurs during the rough and tumble of any family would not be an offence. However, at the end of the day, the damage might be the same.
I am sorry to repeat myself but I go back to the circumstances that the member and others are talking about, and the distinction that they want to draw. Does Bill Aitken not think that the nature, duration and frequency of what was done to a child would allow prosecutors to determine the difference between the situation he describes and when injury is done to a child?
I agree. However, there is an undeniable confusion of the issues, which is why the matter should be left alone. No one should be shaking or striking young children on the head. I do not think that anyone in the chamber disagrees with that premise. Time and again, courts have established that that is unacceptable behaviour.
Will the member give way?
I am sorry but I must move on, as my time is restricted.
Donald Gorrie raised a genuine point. What happens when someone has to cope with someone else who is hysterical, grabs that person and attempts to shake them? Again, there is confusion. That is not a punitive action yet, arguably, that person could find themselves in court.
Murdo Fraser and George Lyon got themselves into a little dispute over the use of a newspaper. Common sense declares that a newspaper driven hard into the solar plexus of a one-year-old child would clearly be an assault, whereas a whack across the back of a 15-year-old would not be. Again, the courts would arrive at that inescapable conclusion.
We have to ask whether there is a problem of children being abused by their parents. The answer is that it might not be a wholesale problem but it is occurring rather more frequently than most of us are comfortable with. We know that it occurs through high-profile media reporting of some horrific cases. We are all anxious to prevent such cases.
When we read the tragic circumstances of the death of little Chloe Bray, which culminated in a trial at the High Court in Edinburgh last week, does anyone seriously suggest that the proposed legislation would prevent such cases? The fact is that it would not, much as we might like to think it would. On that basis, the proposed provision is not necessary because it will not help anyone in that situation. As they stand, the proposals are flawed and will be shown to be flawed. We should leave the matter to the courts to determine.
The SNP's amendments 94 and 95 about the definition of shaking highlight the issue. I am sure that they are a genuine effort to clarify matters but they simply show how confused the issue is. In time, there will be more and more difficulty with the issue and more and more appeal points—I do not know where it will end.
I keep coming back to the point that the law of Scotland is perfectly adequate to deal with the question of abuse. Let the law of Scotland get on with its job. Mr Wallace slightly misdirected members when he said that I said that there are no problems. The vast majority of parents conduct themselves in a responsible and loving manner. Allow them to get on with it.
The question is, that amendment 6 be agreed to. Are we all agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Davidson, Mr David (North-East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (South of Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Goldie, Miss Annabel (West of Scotland) (Con)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Johnstone, Alex (North-East Scotland) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLetchie, David (Lothians) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Mundell, David (South of Scotland) (Con)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Tosh, Mr Murray (South of Scotland) (Con)
Young, John (West of Scotland) (Con)
Against
Adam, Brian (North-East Scotland) (SNP)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gibson, Mr Kenneth (Glasgow) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Harper, Robin (Lothians) (Grn)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North-East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McGugan, Irene (North-East Scotland) (SNP)
McLeish, Henry (Central Fife) (Lab)
McLeod, Fiona (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Paterson, Mr Gil (Central Scotland) (SNP)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Reid, Mr George (Mid Scotland and Fife) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Welsh, Mr Andrew (Angus) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Wilson, Andrew (Central Scotland) (SNP)
The result of the division is: For 18, Against 96, Abstentions 0.
Amendment 6 disagreed to.
In order to support Roseanna Cunningham's amendment 95, I will not move amendment 94.
Amendment 94 not moved.
Amendment 95 moved—[Roseanna Cunningham].
The question is, that amendment 95 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (North-East Scotland) (SNP)
Aitken, Bill (Glasgow) (Con)
Campbell, Colin (West of Scotland) (SNP)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Davidson, Mr David (North-East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fergusson, Alex (South of Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Goldie, Miss Annabel (West of Scotland) (Con)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Johnstone, Alex (North-East Scotland) (Con)
Lochhead, Richard (North-East Scotland) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLetchie, David (Lothians) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Mundell, David (South of Scotland) (Con)
Neil, Alex (Central Scotland) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Reid, Mr George (Mid Scotland and Fife) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
Wilson, Andrew (Central Scotland) (SNP)
Young, John (West of Scotland) (Con)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gibson, Mr Kenneth (Glasgow) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harper, Robin (Lothians) (Grn)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McGugan, Irene (North-East Scotland) (SNP)
McLeish, Henry (Central Fife) (Lab)
McLeod, Fiona (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Abstentions
Robison, Shona (North-East Scotland) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Tosh, Mr Murray (South of Scotland) (Con)
The result of the division is: For 35, Against 74, Abstentions 3.
Amendment 95 disagreed to.
The next question is on amendment 41.
The amendment relates to the current operation of the children's hearings system—
No, Mr Aitken. Amendment 41 has already been debated. Are you moving it?
Amendment 41 moved—[Bill Aitken].
The question is, that amendment 41 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Davidson, Mr David (North-East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (South of Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Goldie, Miss Annabel (West of Scotland) (Con)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Johnstone, Alex (North-East Scotland) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLetchie, David (Lothians) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Mundell, David (South of Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Tosh, Mr Murray (South of Scotland) (Con)
Young, John (West of Scotland) (Con)
Against
Adam, Brian (North-East Scotland) (SNP)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Mrs Margaret (Moray) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gibson, Mr Kenneth (Glasgow) (SNP)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Harper, Robin (Lothians) (Grn)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North-East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McGugan, Irene (North-East Scotland) (SNP)
McLeish, Henry (Central Fife) (Lab)
McLeod, Fiona (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Paterson, Mr Gil (Central Scotland) (SNP)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Reid, Mr George (Mid Scotland and Fife) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Swinney, Mr John (North Tayside) (SNP)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Welsh, Mr Andrew (Angus) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Wilson, Andrew (Central Scotland) (SNP)
The result of the division is: For 17, Against 92, Abstentions 0.
Amendment 41 disagreed to.
After section 43A
Amendment 97 is in a group on its own.
Having jumped the gun somewhat, I move to amendment 97, which relates to the operation of the children's hearings system. The system was set up by the Social Work (Scotland) Act 1968, on the basis of a report prepared under the chairmanship of Lord Kilbrandon, the research for which was carried out some years earlier. The 1968 act introduced a welfare-based system of justice for under-16s.
The issue is that times have moved on. A 15-year-old today is very different—in attitude and physical maturity, for example—from the youngsters of 40 years ago. We have a serious problem with 14 and 15-year-olds in particular, in that those who offend—of course, it is always worth stressing that they are a small minority—have the degree of street wisdom to know that there is little or nothing that can be done to inhibit anti-social behaviour. Indeed, a not infrequent and deliberate ploy is to ensure that when aged 15 and three quarters, they obtain a 12-month supervision order from the children's hearings system, thus staying out of the court process until they are almost 17 or, in some cases, 18.
The fast-track youth courts that are proposed by the Executive have some attractions. A confrontation with a sheriff who has the power to order meaningful but, above all, tough, community disposals will benefit the offender and, more important, society. Our suggestion is that we reduce the age at which offenders go to the panel system, and send 14 and 15-year-olds to the youth courts. Undoubtedly, that would inhibit hard-core offenders.
It is often said in the chamber, and I freely concede, that, sometimes, the difference between a child offender and a child who has been offended against is small, but amendment 97 acknowledges that. By the age of 15, one has a degree of personal responsibility that is not expected of an eight-year-old or a 10-year-old, for example.
It is time to acknowledge that the facts of life are such that it is essential to get tough, and not cosmetically, with the hard core of young offenders who make life a misery for a significant number of people in all parts of Scotland. I say to the Executive that it is time to get real. Despite what has been said and the platitudes that have been offered, nothing that has happened is likely to have a meaningful effect.
Is Mr Aitken suggesting in amendment 97 that the age should be reduced to 14 only for referrals on the grounds of offences or for references on all 21 grounds on which people can be referred to a children's hearing, which include being the victim of sexual offences?
As Mr Barrie knows better than I do—I often listen to what he says on such issues with considerable interest—the children's hearings system is intended to deal with offenders and the offended against. Victims should receive the appropriate assistance that society is geared up to offer. The distinction between offenders and victims is clear by the time that those involved reach the age of 14. Offenders should be dealt with under the proposal in amendment 97. The fact is that victims of sexual abuse would be dealt with differently.
I move amendment 97.
I will take up Bill Aitken's response to Scott Barrie's question. Bill Aitken's amendment 97 would reduce the age of young people whom the children's hearings system could deal with, whether they were referred on care and protection grounds or on offence grounds. Bill Aitken offered no alternative for children who are referred to children's hearings because they are victims. It is all very well for him to say that they will be dealt with in some other way, but he offered no other solution. He diminishes and demeans the children's hearings system's valuable work in providing a service to many 15 and 16-year-olds.
I welcome Bill Aitken's suggestion that youth court pilots will have an effect. We are confident that the youth courts will have an impact. Testing the scheme through pilots is the right approach and any developments will be based on evidence. The youth court pilots will not deal with 14-year-olds. It was said at the launch that youth courts will deal primarily with 16 and 17-year-olds who persistently offend and sometimes with 15-year-olds who would otherwise go through the adult courts system.
If youth court pilots are to be effective, they will be so because of the measures and procedures that we put in place. They will involve special training and procedures for dealing with that age group, with the court keeping an eye on progress through review appearances and the provision of supported programmes to engage the young person in dealing with his or her offending behaviour.
All those measures are central to the fast-track hearing pilots that are operating in three areas. Bill Aitken's amendment 97 identifies only one strand of the Executive's approach to persistent offending. I hope that, if the fast-track hearings show comparable success in dealing with young people, he will extend similar support to their development.
The Executive is committing significant resources to the pilots because we want them to have a lasting impact on young people. We expect fast-track hearings, by targeting the 8 per cent of young people who offend persistently, to tackle those who commit one third of the crime in communities.
The fast-track hearing pilots will seek to show what the system can achieve with targeted and dedicated resources and the aim of changing young people's offending behaviour.
We need to show how the pilots work in practice. Bill Aitken's amendment 97 deals with one part of the equation. Even if we consider the intention behind and not the wording of the amendment, it is premature and does a disservice to the children's hearings system. I ask Bill Aitken to withdraw his amendment. If he does not do so, the Executive will oppose it.
It is not so much the terms of the equation that concern us today but the question of the likely outcome. We all wish to stop, or at least to reduce, youth offending and, quite frankly, what the Executive has on offer is not likely to do that.
Without the additional powers that the Conservatives seek to give to the children's hearings system, as I said last week, the system is on a fast track to nowhere. As it is presently constituted, the children's hearings system is totally and utterly impotent when it comes to dealing with juvenile offenders and that is why I lodged amendment 97.
I ask Scott Barrie or the minister whether they are seriously suggesting that, in Labour-Liberal controlled Scotland, the social work agencies are not able to pick up and deal with those who might fall by the wayside because they cannot be dealt with when they are at risk. Of course the agencies must be able to deal with them.
In saying that I criticise those who spend a lot of time working for the children's hearings system, Hugh Henry again deliberately misunderstood what I said. The fact of the matter is that one third of those who are involved in the children's hearings system vote with their feet every year when they resign from the system. It is inevitable that those resignations are the result of the frustrations that they incur in trying to do that work. If anyone is letting those people down, it is the Scottish Executive. There must be a major problem if there is such a large drop-out rate in the membership of the children's panel. It is clear that there is a problem with the system if those people, all of whom give so willingly of their time and effort, feel disposed to walk away from the system.
Does Bill Aitken concede that the general length of time that people are taken on to serve on a children's panel is three years, which can be followed by two further terms of three years? Except in exceptional cases, people are not expected to serve for longer than nine years. Of course there is a turnaround in children's panel members.
That highlights another difficulty. If that is the accepted norm, why is it that we frequently see expensive, well-publicised campaigns for more panel members? We should either encourage people to serve for longer periods of time or recognise that the reality of the situation is that many people join up to serve on panels before realising that the frustrations of the service are such that they no longer wish to serve.
Amendment 97 seeks to introduce a degree of realism. For far too long, the good that the children's panel system undoubtedly does in many areas has been subsumed by the fact that 14 and 15-year olds cause much of the trouble that takes place. That problem is not being addressed. It is time to wake up and wise up. I press amendment 97.
The question is, that amendment 97 be agreed to. Are we agreed?
No
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Davidson, Mr David (North-East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Johnstone, Alex (North-East Scotland) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLetchie, David (Lothians) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Mundell, David (South of Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Tosh, Mr Murray (South of Scotland) (Con)
Young, John (West of Scotland) (Con)
Against
Adam, Brian (North-East Scotland) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gibson, Mr Kenneth (Glasgow) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Harper, Robin (Lothians) (Grn)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lochhead, Richard (North-East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McGugan, Irene (North-East Scotland) (SNP)
McLeish, Henry (Central Fife) (Lab)
McLeod, Fiona (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Paterson, Mr Gil (Central Scotland) (SNP)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Reid, Mr George (Mid Scotland and Fife) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow) (SNP)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Welsh, Mr Andrew (Angus) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Wilson, Andrew (Central Scotland) (SNP)
The result of the division is: For 15, Against 87, Abstentions 0.
Amendment 97 disagreed to.
Section 43B—Provision by Principal Reporter of information to victims
Amendment 46 is grouped with amendment 47. I am getting a little concerned about the time that we have left for debate.
On a point of order, Presiding Officer. It may help if I intimate that the Conservatives have no objection to any of the amendments in group 15.
I do not think that that is a point of order, although it may be a point of helpfulness.
It is very helpful. My explanation of the amendments will be brief.
Amendment 46 follows up an amendment that we introduced at stage 2 to ensure the provision of information to victims and the parents of child victims at key stages and at the outcome of the children's hearings process when offence cases are involved. We indicated that further thinking was being done as to how best to accommodate other appropriate parties who have a legitimate requirement to receive the same information.
We have explored the matter with representatives of the system and with Victim Support Scotland, and I am introducing the power for ministers to designate by order those parties who should be entitled to receive the relevant information. I am also seeking to provide that ministers may attach conditions to the release of the information—for example, an additional obligation to treat the information in the strictest confidence and to use it only for the purposes for which it has been given.
Amendment 47 is of a technical nature.
I hope that the amendments will further enhance victims' interests in the hearings system.
I move amendment 46.
Amendment 46 agreed to.
Amendment 47 moved—[Mr Jim Wallace]—and agreed to.
Section 47—Retaining sample or relevant physical data where given voluntarily
Amendment 98 is grouped on its own.
The effect of amendment 98 would be to establish the information on rights that would be provided to persons volunteering samples for retention in an investigation under section 47. The SNP supports the principles of section 47. However, giving police a sample—especially a DNA sample—is a substantial incursion into the liberty of the individual, particularly when the sample might be retained and used in any subsequent investigation.
When a police officer asks for a sample, it would take a brave person to say no, even if they did not really want to give one. It is not clear in section 47 that people who give samples will even be informed that the samples are to be retained. When people are arrested, they have a common-law right to be informed of their rights, and when a person is detained, he or she has rights to information about detention. I am looking for an assurance from the minister on police procedures for providing information on rights to persons who provide samples.
I move amendment 98.
There is a civil liberties issue here, which we acknowledge. However, I am uncertain about instances in which problems could arise because nothing was forthcoming in writing. Ms Cunningham might have a specific situation in mind, but I am not quite sure how such a situation could arise. How would it be practicable for police officers to provide the information in writing to a person in custody? Would there be a handout at the police office?
Yes. There would simply be a pre-prepared written statement.
Thank you. That clarifies the matter.
I understand exactly what Roseanna Cunningham is getting at, and I recognise the concerns. Individuals should be clear about what the sample is, when it is to be used and when they have a right to withdraw it. Under section 47(3),
"the person consents in writing to the sample, data or information being so held and used",
and is told at that time that they may elect to confine it to the particular offence. The guidance that will be issued will be clear and a signature will require to be given below a clear consent. Therefore, amendment 98 is unnecessary.
I fully understand and support the intention behind amendment 98, which is that the police service should be accountable for its use of voluntary screening. At present, there are no statutory powers authorising the police to conduct voluntary screenings of sections of the population in respect of specific offences—for example, mass screenings of particular communities following a crime such as a sex attack on a child.
I appreciate what the amendment seeks to achieve but, as Richard Simpson indicated, it is already clear under section 47 that the police can use samples derived from such exercises only if the person provides written consent to the process. For the consent required under the bill to be regarded as fully informed, and therefore valid, the police will require to provide information to the person as part of the process of obtaining written consent.
We will also issue formal guidance to the police that sets out the procedures that will need to be put in place to meet the requirements of the provision in a robust and consistent way in forces across Scotland. The police forces will be required to comply fully with the requirements and to ensure that those involved have the necessary information, because otherwise the consent to use the sample will not be valid in law.
On those grounds, I believe that—as Richard Simpson said—the amendment is unnecessary.
I am content with the assurances that have been given. I seek leave to withdraw the amendment.
Amendment 98, by agreement, withdrawn.
After section 53A
Amendment 57 is in a group on its own.
Amendment 57 is substantial and lengthy. The amendments that it will make to the Criminal Procedure (Scotland) Act 1995 set out a new right for the Crown to be heard when a judge is considering an application by a person, convicted on indictment, for bail pending appeal. The changes also provide that where the initial application for bail is refused and the convicted person applies to the full court for a determination of his application, the Crown has a right to be heard at that further hearing before three judges. They give the Crown a right to appeal against the grant of bail—technically, to ask the full High Court to reach a final determination on grant of bail. When the Crown so appeals, bail will be suspended until the High Court has made its final ruling on whether bail should be granted.
Members will be familiar with the background to amendment 57. A high-profile case highlighted the fact that when a convicted person who is in prison seeks bail pending an appeal the judge hears defence arguments in favour of bail, but the Crown has no right to be heard. Ministers agreed that while bail should remain at the discretion of the court, it is vital to ensure that the court has the information that it needs to reach a balanced decision on the advisability of bail. Concern has focused on the most serious cases, and Crown efforts should be focused on cases of an application for bail following conviction on indictment. Ministers indicated on 14 November that they would change the law to give the Crown a right to be heard when someone convicted on indictment seeks bail pending an appeal.
The amendments to the 1995 act look complex, because the law into which they are being inserted is quite complex, but they merely provide for those new Crown rights and ensure that they can be exercised effectively. For example, they ensure that the person who seeks bail must notify his application to the Crown and that the hearing before a judge must take place no earlier than seven days after the date of intimation, so that the Crown has a reasonable time to prepare.
The amendments to the 1995 act also seek to strike a proper balance between the importance of providing full information to the court at all stages, and the rights of the convicted person. In particular, they make it clear that, when the Crown appeals against the grant of bail, the further hearing before the full three-judge court must be heard within seven days. That minimises the time for which a convicted person who has provisionally been granted bail must remain in custody pending a final determination of his case.
Amendment 57 gives effect to a commitment made to the Parliament. I hope that it will be widely welcomed.
I move amendment 57.
I am glad that the Executive has lodged an appropriate amendment, which arises from the case of Richard Crawford, a convicted murderer who killed an elderly woman in her eighties and absconded while on bail. The police indicated that he was a grave danger to the public. The fact that he was given bail when he had been convicted of murder was extraordinary.
The Deputy First Minister wrote to me on 13 August. The letter stated:
"The matter is entirely within the discretion of the High Court, the prosecutor having no statutory right to be heard when the High Court is considering an application for bail from an appellant pending the determination of his appeal."
It continued:
"I believe that the law provides sufficient safeguards at present."
That struck me as showing an astonishing degree of ostrich-like complacency. I am glad that the Deputy First Minister has been coaxed out of that position, and I thank him for lodging an extremely important amendment. It was clear that if the man was a danger to the public immediately after he absconded, he was also a danger to the public before he did so.
Amendment 57 gives the prosecution the right to be heard and the right to appeal against bail being given. Those are major reforms, which we have called for. I believe that those greater protections for the public will serve Scotland well.
I do not want to speak to the amendment; on the basis of what I have been told, I am reasonably happy with it. I simply posit that it is disappointing to get such substantial and complex amendments at a stage in proceedings when it is difficult for committees and individuals to go through the detail and assess whether the minister is delivering on the intent.
Notwithstanding Stewart Stevenson's important point, it would be regrettable if procedural objections stood in the way of important measures to provide equality of arms. The measure is important for equality of arms for the prosecution and for the proper administration of justice.
I welcome the amendment on two counts. First, the applicant should not be liberated. That is an important safeguard for communities. Secondly, the matter should be dealt with by due dispatch. In that way, if there is a good reason for the application to be granted, the applicant is not unduly delayed, but the public interest in establishing whether that is the position is maintained.
Lord James Douglas-Hamilton referred to the Deputy First Minister as being ostrich-like. On the contrary, I think that on this issue, he is to be commended for the steps that he has taken. This is a major reform. It may have been called for, but during 18 long years under the mob opposite, few steps were taken to secure it.
I have the Deputy First Minister's letter with me. The member is welcome to have a copy, as the facts are beyond doubt. Nevertheless, I am grateful to the Deputy First Minister for yet another U-turn.
To address Stewart Stevenson's important point, I think that it is fair to say that the amendment was not unheralded. We hoped that we might get it through at stage 2, which would have been preferable, but its terms show its complexity, and it was not physically possible to do it then, although we did flag up the issue.
Brian Fitzpatrick makes important points about the balances that we have tried to reach.
In the spirit in which Lord James Douglas-Hamilton referred to me with regard to the amendment, I respond that it is a great pleasure to amend legislation taken through the House of Commons only eight years ago by Lord James Douglas-Hamilton.
Amendment 57 agreed to.
Amendment 58 moved—[Mr Jim Wallace]—and agreed to.
Section 56—Registration for criminal records purposes
We now come to group 18. We have very little time. I call the minister to move amendment 59, which is grouped with amendments 60 to 63.
Amendment 59 will have the effect of bringing prospective adoptive parents and others in a household within the scope of the enhanced criminal record certificate arrangements under part V of the Police Act 1997. Amendment 60 will bring Her Majesty's inspectors and others involved in the inspection of educational provision within the scope of the enhanced arrangements.
We announced our intention to introduce amendments for those purposes at stage 2, when several other categories of person were brought within the scope of the enhanced criminal record certificate arrangements. That was agreed on the basis that, because such persons will occupy positions that give them access to children or vulnerable adults, or to sensitive information about such vulnerable people, they should be checked to the fullest extent possible, which means that the enhanced criminal record certificate should be available for them. That applies equally to those who propose to adopt a child and others in the household as it does to those who will be involved in inspecting educational provision.
Amendment 61 is a minor drafting amendment. Amendments 62 and 63 are also minor amendments that are intended to clarify a provision that is being inserted into part V of the Police Act 1997. That provision is concerned with regulations that ministers are enabled to make under section 120 of the 1997 act with regard to the countersigning of criminal record certificates. Amendments 62 and 63 remove existing duplication and ensure that the provision is easier to read, because it now makes express reference to the corporate bodies and office holders who can make nominations.
I move amendment 59.
Amendment 59 agreed to.
Amendments 60 to 63 moved—[Mr Jim Wallace]—and agreed to.
After section 56
We come now to group 19, on access to certain reports where sexual offences are alleged. Amendment 99 is grouped with amendment 110.
The purpose of amendment 99 is to prevent the unnecessary and undesirable restriction of access to any police report that has been suppressed on the ground that access could lead to the identification of people who were abused during their childhood.
Recently, attention has been drawn to a police report about Thomas Hamilton, who was the perpetrator of the Dunblane massacre. The report is subject to a non-disclosure period of 100 years and was compiled by Detective Sergeant Paul Hughes of Central Scotland police. Extracts from it were revealed during the Cullen inquiry, including the following statement by Detective Sergeant Hughes:
"I am firmly of the opinion that Hamilton is an unsavoury character and unstable personality … I would contend that Mr Hamilton will be a risk to children whenever he has access to them and that he appears to me to be an unsuitable person to possess a firearms certificate."
He added:
"it is my opinion that he is a scheming, devious and deceitful individual who is not to be trusted."
That was in 1991—five years before the Dunblane massacre. Unfortunately, Detective Sergeant Hughes's superiors did not act on the report. If it had been acted on, the Dunblane tragedy might not have happened.
The same report is said to contain the names of children who were abused by Thomas Hamilton and the names of prominent public figures who had contact in some way with him. I understand the need to protect children, but I fail to see why children should be used as a shield to suppress an entire report for 100 years, in case it might embarrass some prominent public figure or figures.
I welcome Lord Harry Ewing's call for the report to be brought into the public domain in order to prevent a witch hunt and the First Minister's statement that the Lord Advocate is considering what access can be made available to the report. However, the matter is so important that it should not be left simply to the discretion of the Lord Advocate. There ought to be statutory provision for the release of such information to prevent accusations of a cover-up. Amendment 99 would make such statutory provision for access to reports and information that apparently do not fall within the provisions of the Freedom of Information (Scotland) Act 2002. It would also ensure the protection of children and adults who were abused when they were children, as any information that could lead to the identification of children would be deleted from reports before they were released.
The Scottish Executive is committed to freedom of information and the Deputy First Minister has declared his enthusiastic public support many times for freedom of information. Therefore, I hope that the Executive and the Parliament will support the amendment.
I move amendment 99.
I listened carefully to what Dennis Canavan said and it appears to us that there is considerable merit in his proposals.
The release of reports must be governed by a number of factors. No one would suggest for one moment that a report of the type that we are discussing should be issued unamended, without the names of the children who were involved being deleted. Unless there is any pressing reason—possibly relating to national security, or some other reason—for such papers not to be issued, we agree that in general terms, they should be issued. Amendment 99 might be unnecessary in the light of undertakings that the Lord Advocate gave last week that the report in question will be released suitably edited, which addresses the issue of those children who were allegedly subject to abuse. However, we require to be satisfied about the matter by the minister. I shall listen to what he says with particular interest.
We all agree that things should not unnecessarily be kept secret. We can agree that there are certain instances in which there should be confidentiality, but it is difficult to see in issues such as that which we are considering why things should be kept secret in general terms, apart from to protect vulnerable children.
I have some sympathy with what amendment 99 proposes. I do not think that any member thinks that there should be a hiding place for anyone who has used a position of public responsibility to suppress information that might have a bearing on our view of the terrible events in Dunblane. However, I have concerns about the use of general legislation to address such a specific problem, not least in these circumstances, given the Lord Advocate's undertaking on that specific case.
I am unable to support amendment 99 because I do not think that subsection (2) of the proposed section goes far enough. Under subsection (2), only such information as could lead to the identification—that is, the naming—of any person would be excerpted. In my respectful view, any such provision would need to go much further than that, by also excerpting identifying circumstances and all the res gestae that touch upon identification. We must remember that, in the circumstances of the Hamilton case, the young children who were affected will today be young men. That may also be the case in other situations in which the provisions might apply. We need to consider carefully whether there are circumstances that might identify individuals.
As it stands, subsection (2) would allow an application for such information to be made by "any person", rather than any person having an interest or any person having cause for complaint. If we accept "any person", that could allow any person who had a prurient interest to make such an application. I regret that we have to deal with amendment 99 in the terms in which it currently stands, so I cannot support the amendment.
I am sympathetic to amendment 99. We believe in the principle—which Dennis Canavan, in his own words, actually set out very fairly—that the victims should not be further distressed by disclosures that could reveal their identity.
It goes without saying that I agree with Mr Canavan that ministers should not be protected. Indeed, during the 10 years in which I was a minister, the rule that I always applied was never to take any action on anything that would be unacceptable to the House of Commons. Whenever I was in doubt, the civil servants always had a great deal more work to do.
In my view, the First Minister was absolutely right to confirm that the matter is for Lord Cullen, who is now Lord Justice General and Lord President of the Court of Session, and for the Crown Office. I repeat that we are sympathetic to Dennis Canavan's amendment, which is extremely fair.
Like Brian Fitzpatrick, I understand and sympathise with Dennis Canavan's intentions and motives in introducing amendment 99. I do not think that anyone would support a system that is bound in secrecy and which wrongly protects people who do not want to face up to their responsibilities.
Although Dennis Canavan's amendment is understandable as a hasty response to recent events, the proposed section would be a rather crude implement, which would not necessarily achieve his aims. Indeed, amendment 99 could cause significant damage in a range of areas. As Brian Fitzpatrick highlighted, not least of the problems is that subsection (2) would allow the Thomas Hamiltons and other such unsavoury characters of this world to have access to that information.
In addition, although the personal references to the children could be deleted, there might be general circumstances about the cases that might attract some of these undesirable individuals, who would take some strange and perverse pleasure from reading about personal tragedies. We must therefore be very careful about what we are doing.
Another reason why we must be careful is that much of the information that is held by the police comes from people who are involved with the criminal justice system unwittingly. For example, they may be involved as informants or as victims or, indeed, as witnesses. Their evidence is often given in good faith, on the understanding that it would be used appropriately, including in a trial. Of necessity, some of that information is of a personal nature such that, if it were disclosed outwith the court process, it could cause real distress and embarrassment to those affected, especially the victims or the alleged victims and their families. Even though we might give the assurance that individuals would not be identified, the circumstances might nevertheless mean that those people could become open to investigation by others for whatever motive.
Amendment 99 might result in that evidence being disclosed, possibly to criminals such as paedophiles and possibly before a trial took place. Even if reports were to be made completely anonymous, with detective work and persistence—which such people often have—it might be possible to deduce identities or, perhaps even worse, wrongly to deduce identities. It is not difficult to foresee cases in which the amendment might not only damage those who are affected, but undermine the criminal justice system and the confidence of ordinary people in that system.
The existing statutory arrangements and other arrangements, bolstered by the Freedom of Information (Scotland) Act 2002, are sufficient. The assurances that the First Minister has given in the past week go some way to addressing the other concerns that have been articulated. We all sympathise with Dennis Canavan's point but, to put it crudely, Parliament would make a major mistake if it tried to use amendment 99 as the means to achieve his intention.
I listened carefully to what the minister and other contributors to the debate said. The only serious point of opposition to amendment 99 was that some prurient people or undesirable elements would have access to such a report. We either believe in freedom of information or we do not. If the Lord Advocate decides—I hope that he will—to put the report on Thomas Hamilton into the public domain, will there be anything to stop a prurient person or undesirable element accessing it? As I understand the existing procedures, the Lord Advocate has the discretion to delete from the report names or other information that might lead to the identification of children or adults who were children when they were the victims of abuse.
The issue is serious and I genuinely acknowledge the motives that underlie Dennis Canavan's amendment. Does he agree that his amendment would allow any person to apply and that in those circumstances a chief constable would have no locus to refuse the application?
I will give an extreme example to test amendment 99. If I am in a sexual offenders unit somewhere in Scotland, I might apply for the information even though I have no interest in it or, at best, a prurient interest, unlike the people who suffered as a result of the Dunblane massacre. Amendment 99 would allow me to apply for the information and the chief constable would not be entitled to refuse the application.
Does Dennis Canavan agree that we must find another way to respond sensibly to the legitimate concerns that have been raised as a result of the Dunblane case without creating other dangers? Amendment 99 might create dangers but, as far as I can tell, Dennis Canavan has not addressed that. Will he put my mind at rest on that matter?
The chief constable would have the discretion—indeed, an obligation—to remove from the report or other information any material that might lead to the identification of the child or the adult who had been a victim during his or her childhood. At present, there is no obligation on the Lord Advocate to do that because his powers are discretionary.
I hope that the Lord Advocate will put the report on Thomas Hamilton into the public domain for the reasons that I outlined previously. Of course, there is a risk that a prurient person or undesirable element might go to the Crown Office and demand access to the report. I suppose that there is such a risk in any freedom of information provision. However, the amendment stipulates that any material that would identify the victim is to be deleted. We should be on the side of freedom of information rather than on that of protecting people who are not victims but who might be named in the report because of a connection with the accused.
I ask members to support amendment 99.
The question is, that amendment 99 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (North-East Scotland) (SNP)
Aitken, Bill (Glasgow) (Con)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Davidson, Mr David (North-East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Fergusson, Alex (South of Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Mr Kenneth (Glasgow) (SNP)
Goldie, Miss Annabel (West of Scotland) (Con)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Harper, Robin (Lothians) (Grn)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Johnstone, Alex (North-East Scotland) (Con)
Lochhead, Richard (North-East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McGugan, Irene (North-East Scotland) (SNP)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLeod, Fiona (West of Scotland) (SNP)
McLetchie, David (Lothians) (Con)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Mundell, David (South of Scotland) (Con)
Neil, Alex (Central Scotland) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Reid, Mr George (Mid Scotland and Fife) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McLeish, Henry (Central Fife) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 42, Against 65, Abstentions 0.
Amendment 99 disagreed to.
Section 57—Advice, guidance and assistance to persons arrested or on whom sentence deferred
Amendment 64 is grouped with amendments 65 to 70.
The purpose of amendment 64 is broadly the same as what I attempted to achieve at stage 2 with amendments 117 and 118.
During discussions on amendments 117 and 118, the Deputy Minister for Justice accepted that the intention of the amendments was to support the recommendations made in the tripartite group's report on prison throughcare. The tripartite group was set up by Iain Gray during his tenure of the justice portfolio, and comprised members of the Executive, the Scottish Prison Service and local authorities. However, the minister felt that the amendments that I lodged at stage 2 went further than the recommendations of the tripartite group, and he wanted to consult the Association of Directors of Social Work and the Scottish Prison Service further on the legislative provision to support the policy on throughcare. The purpose of amendment 64 is to amend section 27 of the Social Work (Scotland) Act 1968 to provide a statutory service to prisoners. The lack of an existing statutory requirement, other than the general duty to promote social welfare that is contained in section 12 of the 1968 act, is at odds with the policy intentions outlined in the national objectives and standards for throughcare.
At the moment, some prisoners, in some circumstances, in some penal establishments receive a service from some local authorities. The system is far from uniform or equitable. Because throughcare services to serving prisoners are not defined as a statutory function of local authorities, arrangements for the delivery of those services tend to be fragmented, which is counterproductive to the concept of throughcare.
The amendment will entitle those prisoners who are subject to supervision following their release, and those who are not subject to supervision but who have requested such help, to receive appropriate advice, guidance and assistance during imprisonment from a supervising officer appointed by the relevant local authority. The amendment will also provide a mechanism whereby more than one local authority may be responsible for sorting out such an arrangement between the relevant authorities.
The amendment will contribute to public protection by providing a clear statutory basis for the service provision to prisoners, enabling a joined-up approach to throughcare services by assisting the process of rehabilitation and by preventing further offending after release.
I move amendment 64.
Section 57 deals with the functions of local authorities in respect of arrested persons and persons on whom sentence has been deferred in their area, and the functions of local authorities in respect of the supervision and care of persons put on probation or released from prisons.
Amendment 64 provides local authorities with statutory powers to deliver strengthened throughcare services to prisoners from the point of imprisonment and following release. It seeks to clarify that local authorities can provide services to prisoners who are required to be under supervision on release during their term of imprisonment and to ensure that other prisoners who are not required to be under supervision can benefit from those local authority services on request.
At stage 2, the Justice 2 Committee stressed that the development of throughcare services for prisoners must be taken forward in equal partnership between local authorities and the Scottish Prison Service. I undertook to ensure that any amendment to the provision met with the intention behind the recommendations of the tripartite group's report and with the agreement of the agencies involved. I am pleased to inform the committee that that is the case in both instances. I thank Scott Barrie for his work on the issue, and the Association of Directors of Social Work and the Scottish Prison Service for their contribution to ensuring that the policy can be progressed. Because of amendment 64, prisoners will soon be able to benefit from improved services that are delivered in partnership.
Amendments 65 to 70 recognise that, although the initial engagement by the arrest referral worker will be in the police cell, the worker might have an on-going involvement with the accused for a follow-up period. As drafted, the bill allows for a service to be provided only during the period of detention. The amendments seek to change the existing provisions to enable services to be provided following a person's release from police custody. However, we have set a limit of 12 months on the service to ensure that schemes have the capacity to deal with new referrals. Amendment 68 seeks to clarify that the local authority's responsibility for providing services on arrest is confined to those who are arrested or detained within its area and who remain in that area following their release from custody.
Amendment 69 seeks to make a minor adjustment to the bill's provisions on deferred sentence to clarify that the duty on the local authority to provide services in respect of offenders who are subject to deferred sentence lasts only as long as the period of deferment and while that person is in its area.
The extension and clarification of the functions under section 57 through amendments 65 to 70 are important in increasing the range of assistance that is available to the accused and to offenders, particularly those with drug misuse problems. We are anxious to see the wider development of arrest referral schemes across Scotland and the amendments will ensure that the scheme works effectively.
I support amendment 64.
I thank the deputy minister for his comments and for his assistance in this matter. I am gratified to find that we have been able to work on an issue that was not clearly stated in the bill at stage 2 and to come back to the chamber with firm proposals at stage 3. I also pay tribute to the ADSW, the Scottish Prison Service and those involved in the tripartite group for all their work over the past two years to ensure that we put throughcare services on a statutory footing. By doing so, we will ensure that the whole prison service is more joined up and that it puts the element of rehabilitation that we want it to achieve more at the forefront than it perhaps has in the past.
Amendment 64 agreed to.
Amendments 65 to 70 moved—[Hugh Henry]—and agreed to.
Section 59A—Offences aggravated by religious prejudice
Amendment 10 is grouped with amendments 7, 1, 9 and 2. If amendment 9 is agreed to, amendment 2 will be pre-empted.
Amendment 10 seeks to amend section 59A, which was itself proposed in an amendment that I lodged at stage 2, in a way that was proposed by the Government lawyers. It suggests that the court should make clear the extent to which the penalty reflects the aggravation of the offence by religious or sectarian hatred. As the whole idea behind the section is to send out a message that sectarian and religious violence is not acceptable in this country, it seemed like a good idea to include the text that is proposed in amendment 10. Amendment 10 is a refinement by Government lawyers of their own wording to make it more clear what a court must do to clarify the extent of and the reasons for the additional penalty.
I want to defend section 59A because Bill Aitken has an amendment that proposes to demolish it. I do not claim that section 59A is a magic wand that will make Scotland a better place overnight. However, it could be a modest but useful help in dealing with the vexed issue of sectarian and religious hatred by sending out the message that sectarian and religious violence is unacceptable. I think that almost everyone accepts that sectarian and religious hatred and prejudice exist in Scotland and that they are bad aspects of our society. Most people would accept that people in all parts of our society are prejudiced and bigoted and that sectarian violence exists. Figures clearly show that to be the case.
Sectarian violence often arises because of football matches between Rangers and Celtic, but that is not the only sphere for such violence. For example, because the police feared that there would be violence, they had to recommend that a march through Wishaw that was planned by Irish republican groups should not take place. Sectarian violence is a serious issue. In addition, since 11 September 2001, Muslims, Jews and other groups have suffered increased harassment and, in some cases, violence.
Sectarian violence is caused by a cocktail of drink, religious traditions, Irish history and politics, racism and excessive football-club patriotism. All those contribute to the violence, but the sectarianism is a key part of it. When I intended to promote a member's bill on sectarian violence, I consulted widely. I sent out a substantial pamphlet to 500 organisations and got 100 responses. A majority of the responses supported the idea of aggravation, which would mean an increased penalty for an existing offence.
Can Mr Gorrie explain, by giving examples, what he means and does not mean by
"members of a religious group, or of a social or cultural group with a perceived religious affiliation"?
Can he give an example of a group that has a "perceived religious affiliation" and an example of one that does not, so that members can be clear about what they are voting for?
As I said, there is a mixture of sectarianism, Irish politics and so on. I would have thought that the republican march that was perceived as going to cause a problem would come under section 59A as a sectarian issue. If people hit each other after a football match between Celtic and Rangers, that is violence that is motivated by sectarianism because the two clubs are regarded as promoting sectarianism.
I want clarification of the issues around, for example, a march that might attract violence. Does that mean that if a group said that it would disrupt a march and cause bother, such a march would have to be banned because it would be perceived as being part of the problem? That would be a troubling road to go down in relation to these sensitive issues.
What Johann Lamont referred to happens already. The march to which I referred was cancelled under the existing law. If members will let me, I will explain what it is that I propose. Section 59A will not create any new offence, but will merely provide for a bigger penalty for an existing offence. I am not proposing to create any new offence.
Because I come from Dundee, I do not know of the circumstances of the ban to which Mr Gorrie referred. However, I know that James Connolly, who was a figure in Irish and socialist history, is well known as a socialist and is supported by people across political parties and that he and his supporters are the last people who could be called sectarian.
Unfortunately, a person who is not sectarian can be supported by sectarian people. Many supporters of Jesus Christ act in an extremely bad manner, but that does not mean that he was bad in any way. Mr Connolly is not responsible for the aberrations of some of his followers.
My proposal is supported by faith groups, almost all the churches, unions, councils, colleges, universities and other organisations. There is wide support for the idea of aggravation.
As I have said repeatedly—although it seems that people have difficulty understanding my point—my proposal creates no new offence. It creates a bigger penalty, if the court so decides, for an existing offence. The policeman charges a person with a breach of the peace, an assault or whatever and reports that. If, on the basis of what the policeman has said and other evidence, the procurator fiscal thinks that there is a religious hatred element, he or she will put that into the charge and it will either be proved or not. I am not proposing that thousands of football supporters should be arrested or that there should be a ban on free speech or action. The normal law applies in that two witnesses will be required to prove the offence and, in line with similar legislation, one witness suffices in relation to the aggravation element.
The opposition to the proposal stems from two views. One is that we do all of what I am proposing already and the other is that it would be impossible to enforce. It is reasonable to support one argument or the other, but not to support both.
The Solicitor General for Scotland who, with her background as a procurator fiscal, is peculiarly well qualified to comment, explained to the committee for an hour that the proposal was quite manageable and enforceable and said that she supported it.
There is an argument that we cannot prove how many incidents happen at the moment and that, therefore, we should not go ahead. The fact is that nobody has hitherto taken the issue sufficiently seriously to collect information and that both sides of the argument are therefore reduced to using anecdotal information. If the situation were clearly stated in statute, we would know the extent of sectarian violence for the first time.
We should not leave the decision to the whim of each sheriff or magistrate. I am sure that many of them take account of sectarian motivations but, from what many witnesses told us, we can see that others do not. One does not set a speed limit and say that it would be nice if people went slightly slower; one says that people should not drive at speeds that break the speed limit. Similarly, we should say that an offence caused by religious hatred should be treated more seriously than one that is not.
Almost all the arguments that are advanced against this proposal were advanced a few years ago against legislation on racial hostility. That legislation has worked perfectly well. There has been a great increase in the reporting of racial hostility, which brings the issue into the open. That is surely a good thing.
I am proposing that sending out a message that religious bigotry and the violence arising from it are not acceptable will help to change people's attitudes. If we do not do that, we are saying that we will do nothing about the problem but will leave the responsibility for doing so up to education and so on. If we are to have a full range of educational measures to change the attitudes of adults and children, we must state in the law that sectarian violence is not acceptable.
I move amendment 10.
Amendment 10 is a classic case of how the road to hell can be paved with good intentions. It is important to make one thing clear: sectarianism and racism have no place in contemporary Scottish life. No one condemns more than I do the way in which they have permeated some sections of west of Scotland society in particular over the past 75 to 100 years.
In recognition of that, sheriffs, magistrates and judges have long made every effort to stamp out such behaviour. The courts have always viewed any breach of the peace, assault or any other crime in which there has been a sectarian element much more severely than if the crime had no such element.
Donald Gorrie referred to the Solicitor General for Scotland's evidence to the Justice 2 Committee. To be frank, I found her contribution to that debate disappointing. As an experienced procurator fiscal, the Solicitor General must have had to deal with many such cases in her day. Surely she must have seen that judges deal with them much more severely than they would deal with a conventional breach of the peace.
There is no need for amendment 10. The police say that it is not workable. Lawyers know that it is unworkable. The Sheriffs Association expressed concern, as I recall. Indeed, anyone who has the remotest connection with the legal system knows that amendment 10 is unnecessary and runs a real risk of complicating matters to the extent that what we are trying to achieve—namely, a reduction in sectarianism—will simply not be achieved.
The Executive and Donald Gorrie have to think again. The dangers of overcomplicating matters cannot be overemphasised. I can well imagine that prosecutions that would otherwise have been successful would be lost as a result of amendment 10.
Robin Harper's amendment 1 is, as ever, well intentioned. The problem is that, when we seek to include in those likely to suffer prejudice such a wide number of groups, we have to be very careful indeed. In proposed subsection (7) of the section that amendment 1 would introduce, Robin Harper defines what he means by "social group" as one defined
"by reference to gender, sexual orientation, disability or age."
If religious and racial prejudice are already included, it is difficult to imagine any section of society that would be excluded—or is it to be open season on middle-aged, heterosexual, fully fit men who are white atheists? Basically, that is what amendment 1 says.
I do not for a moment doubt Robin Harper's good intentions, but what he suggests is simply not workable.
I return to the principal point: I stress to the Parliament the real dangers of Donald Gorrie's amendment 10. We all want to combat sectarianism, and many initiatives could be taken in that direction. The criminal justice system has historically taken and takes a robust attitude against sectarianism. It is playing its part to combat it. Not only is amendment 10 unnecessary, it is a dangerous overcomplication of the existing situation. The Parliament should have no truck with it.
Amendments 1 and 2 are an extension of the principle of section 59A, which makes malice and ill will based on religious prejudice a statutory aggravation of any offence. Amendments 1 and 2 extend that to malice and ill will based on the other grounds on which people most commonly face harassment and prejudice—gender, sexual orientation, disability and age.
Amendment 1 covers those four grounds because there is no doubt that many people are at a significantly increased risk of crime because of their gender, sexual orientation, disability or age. That crime ranges from breach of the peace, through vandalism, to serious assault and murder.
For the information of Bill Aitken, European Union laws to address prejudice cover exactly those same four grounds, together with racial prejudice and religious prejudice. New UK legislation on discrimination in employment and training will cover the same six grounds. It makes sense for our law on aggravated offences to cover the same grounds as those other laws on prejudice and discrimination, and amendment 1 would ensure that.
Amendment 1 is supported by organisations working in the four areas that it covers. Those include Capability Scotland, the Scottish Association for Mental Health, Engender, Age Concern Scotland and the Equality Network. Those organisations are all too aware of the reality of crime motivated by prejudice. Research published only yesterday by the Glasgow-based Beyond Barriers organisation found that two thirds of lesbian, gay and bisexual people have been abused or threatened, and that one quarter of them have been physically assaulted, because of their sexual orientation.
A study carried out by the National Schizophrenia Fellowship (Scotland) in 2002 found that people with mental health problems reported twice as much harassment as the general population, and that a third of the people who experience that harassment have been forced out of their homes as a result. We know that far too many women face gender-based abuse and violence, and abuse of people because of their age is equally unacceptable.
During evidence to the Justice 2 Committee at stage 2, the Solicitor General said that the introduction of a statutory aggravation of religious prejudice would enable the Crown Office and Procurator Fiscal Service to start to monitor the extent of crime motivated by religious or sectarian malice, which is not being done at present. Amendment 1 would simply allow that monitoring to be extended to all groups suffering routine prejudice and harassment.
I have had indications that, although the Executive is sympathetic to extending the law in the way that I propose, it might want more time to consult and to explore such a proposal, possibly by setting up a working group with a view to reintroducing the measures in amendment 1 in the next parliamentary session.
The Minister for Justice has kindly indicated a willingness to set up that working group and, if he can confirm that to Parliament today, I will not press amendment 1, on the ground that that group's work might give us the best opportunity for good legislation to be drafted in the future.
The list of members wishing to speak on this group of amendments is quite long, but we should still have time for everyone.
I have considerable sympathy with many of the points made by Bill Aitken—and, I suspect, with some of the points that were being made by members on the Labour back benches, judging from the activity that seemed to be going on while Bill Aitken and Donald Gorrie were speaking.
To be honest, I am getting a little tired of banging my head against a brick wall on this issue. It is my view that section 59A will deliver fewer prosecutions and fewer convictions than there are at present. The minister seems to be content with that. We have dragged the debate on for so long now that the SNP will simply go along with what the Executive appears to want, although I do not think that the measures will achieve it. [Members: "What?"] Conservatives may look askance at that, but the debate has gone on for too long. If the minister's view is such, so be it. I will simply go along with it.
Robin Harper's amendment 1 is precisely where we start to get into difficulty. Paul Martin has an amendment on offences against firefighters and ambulance personnel in pursuance of their duty, which we will support if it goes to the vote, as the amendment is very clear. However, I am starting to think that what we need is a piece of legislation that defines who can simply be assaulted in an ordinary fashion. There are now so many exceptions and groups who are to be the subject of aggravations in assaults that there will be hardly anyone left.
Robin Harper makes a persuasive case for some of the people that he has mentioned, but equally, there are other groups of people who might ask, "Why am I being left out?" At some stage, we have to say that enough is enough.
Does the member think that the people who draft European law have made a big mistake?
The SNP is a great supporter of the European Union, but even we would never say that everything that emanates from the European Union is right and should not be argued against. We must take a few steps back. The SNP will not support amendment 1, because it would extend the provisions for aggravation in assault cases to too many groups. At the current rate, there will be no ordinary assault left. We must question the way in which we are dealing with Scottish criminal law.
I will offer an example of a demonstrably inflammatory statement that was as inaccurate as it was malevolent and that could easily have given rise to sectarian aggravation. I will quote from the Sunday Herald of 11 March 2001. I want to know whether the statement—by no less a person than Donald Gorrie—could be subject to prosecution under section 59A of the bill.
Donald Gorrie stated:
"Less intellectual Catholic organisations have a grip on the party. Many Labour politicians have told me that they have to make a Faustus-like pact with the devil to get elected".
He continued:
"There is a predominance within the Labour Party of Catholics. I'm amazed more hasn't been made of this relationship. We have to ask, ‘Is it good for politics, democracy and society?' I'm not saying Labour is in the Church's pocket but the Catholic Church has permeated and heavily penetrated the party. In some areas it seems every Labour member you meet is a lapsed Catholic. In East Lothian, for example"—
there is the rub, as he is talking about my constituency—
"Catholics are in a minority, yet they have a grip on the Labour Party."
Donald Gorrie concluded:
"At a local level, Labour is profoundly corrupt in terms of its relationship with the Catholic Church. In some cases, to even get a position as a school janitor you have to scratch the right backs, and that means that going to the right church helps you get on."
That is a load of dangerous and offensive nonsense. I have been a member of the East Lothian Labour party for almost 30 years and I was flabbergasted by Mr Gorrie's comments—as were people from all parties and none in the county that I represent. We in East Lothian have never paid any attention to people's denominational background, so I challenged Donald Gorrie to substantiate his allegations or to withdraw them. In response to his comments, we undertook some research for the first time into the present and past composition of my constituency Labour party and the local authority. Surprise, surprise—it emerged that the minority proportion of Catholics in the party is and has been in line with the minority Catholic population of East Lothian. Until Mr Gorrie saw fit to make his extraordinary accusation, no one had known or cared who was from a particular denominational background.
Donald Gorrie's public accusation that there is sectarianism in East Lothian was offensive, inflammatory and rubbish. In a letter to me, he withdrew the accusation, but I am afraid that the damage had been done. The allegations had been publicised—the word was out and people were whispering. I submit that that sort of aggravation, which was likely to stir up sectarian suspicions where none previously existed, should be subject to any serious legislation against sectarianism. We all deprecate sectarianism in all its forms, but there is a whiff of hypocrisy in some quarters in this debate. My question is this: under the terms of section 59A of the bill, could Donald Gorrie be prosecuted for making such an aggravating statement? I hope so.
John Home Robertson puts his finger on the weakness in section 59A that has given rise to our amendment. Regardless of whether what Donald Gorrie said constituted sectarianism—on the balance of probabilities, I believe that it did not—it would take the police a disproportionate amount of time to work out whether that was the case. I do not believe that that is fully in the public interest.
I had the privilege to serve with Donald Gorrie on the cross-party working group on religious hatred, under the excellent chairmanship of Richard Wilkinson. I pay tribute to his work, which was continued by Hugh Henry. [Members: "Richard Simpson."] I am so sorry. Richard Simpson was the chair of the group. That was a slip of the tongue, or a Freudian slip.
I sympathise with Donald Gorrie's purposes and endorse the aim of promoting a tolerant society that is free from religious hatred. Indeed, I agreed to all the working group's numerous recommendations, with the exception of one, which was on the subject of legislation. The police had substantial reservations because of the very obvious point that has just been made by John Home Robertson. The Crown Office also had reservations about the enforceability of statutory provisions. When someone commits an offence, it is not always easy to determine exactly what was in that person's mind at the time.
As it is, sectarian elements in criminal actions are already rightly treated as an aggravating circumstance under common law. Making sectarianism a statutory offence would mean that other crimes of violence would be given less priority. I will give two examples; if a police officer is assaulted or if football supporters seriously injure supporters of another team, it might be that there was no element of sectarianism to those crimes and that the offenders were merely giving expression to tribal loyalties. However, the effect of the crime could be just the same. Why should such crimes be downgraded because no sectarianism is involved?
The common law works well at present. Judges take into account all the circumstances of cases and rightly take a serious view of sectarianism. Adding a statutory offence could take up an disproportionate amount of police time, which could be accompanied by definitional problems relating to free speech. John Home Robertson would defend Donald Gorrie's right to freedom of expression, even if he would seriously question whether Mr Gorrie was going beyond the bounds of what is permissible.
We believe that the case for statutory intervention remains not proven and, in any case, the police and Crown Office have—as I said—substantial reservations. We all abhor those who use religious faith as a reason for hating other people and we want to rid our country of bigotry in all its forms. However, we should not leap to the automatic conclusion that more laws are necessary in order to achieve that.
Although I whole-heartedly applaud Donald Gorrie's aim, I believe it would be best achieved under common law and without further statutory legislation.
I would like to speak about Robin Harper's amendment and specifically about sexual orientation discrimination, which is a real and serious form of prejudice that takes its form in violence and physical abuse.
In yesterday's The Herald, a Mr Cowan from Edinburgh said:
"I have yet to hear a politician in Scotland stand up and insist that something is done".
I know that there are politicians in the chamber who have said that something should be done about sexual orientation prejudice. Robin Harper, Kate Maclean and others on the Equal Opportunities Committee have consistently argued that something should be done, so what should we do?
In a recent survey of 920 lesbian, gay, transgender and bisexual people, 79 per cent had suffered verbal or physical abuse and 20 per cent had suffered physical abuse. Those are quite staggering figures. One of the problems is that the community is afraid to report crime in our criminal justice system—many serious incidents are still not reported. Parliament must consider the nature of that discrimination and not merely pass a resolution today that will bring a law into force. Each of the prejudices and discriminations that are mentioned in Robin Harper's amendment contains its own peculiar and distinct issues. Parliament should not overlook that when it considers the types of prejudice that people face.
Robin Harper is right to call for the Executive to look into the distinct problem. Before we think about passing laws, we should strengthen our resolve to tackle the lack of confidence that lesbian, gay, transgender and bisexual people have in reporting crime. If we do that, I think we will have done something worthwhile. I support the Executive's position.
I want to speak against Bill Aitken's amendment, which aims to take out section 59A. The Tories normally call for greater sentences for criminal offences, so I am a little bit surprised to see that they oppose such a measure. They normally call for just such a thing to be done.
In a way, however, I am not so surprised, because in my view the Conservatives are completely out of touch with the people of Scotland, especially on this issue. Victims of violent crime are often targeted simply because of their religious beliefs or affiliation—we see it reported in the press frequently. Section 59A will not create a new crime and it will not create a new offence; rather, it will bring our law into line with current law relating to racial intolerance and bigotry. Violent crime is not acceptable and, in my view, violent crime that is motivated by religious prejudice needs to be stamped out completely.
It is rare to be able to bring to bear experiences from my past, having spent most of my adult life in the army, but in the army we have what is called a prevalent offence—some sort of illegal activity that needs to be stamped out. The commanding officer of any military unit can declare a prevalent offence—in other words, it carries a heavier than normal penalty—to eradicate the activity about which the commanding officer of the unit is concerned. That system works in the services. The idea is that there is a desire to eradicate an offence, so minds and attention are focused on it by creating a heavier penalty. That is what section 59A of the bill is all about. I find it incredible that the Tories want to remove it.
The clear message in section 59A is that offences that are aggravated by religious prejudice are not acceptable. I disagree with Roseanna Cunningham; I think that the bill will help to stamp out religious bigotry, but I do not think that it is helpful to try to belittle the whole concept of aggravated offences, because I know from experience that they work.
I heard clearly what John Home Robertson said, but I ask him not to confuse the issue of allegations of religious bigotry—from whatever source they come—with the issue that we are dealing with, which is offences that are aggravated by religious prejudice. We need to remove that. Section 59A is a progressive measure, which should be supported. I hope that Parliament will do that today.
I have genuine concerns about section 59A, but not because I condone in any way, shape or form sectarianism or any other form of religious prejudice. I think that—whatever faith we follow, or whether we follow no faith—I speak for everyone on the Labour benches when I say that.
Sectarianism is a complex issue and it was clear to me from Donald Gorrie's speech that he simply fails to understand the complexities of it. He could not explain what was meant by section 59A, or what
"a social or cultural group with a perceived religious affiliation"
is or is not. That is a significant failing.
I address my comments to the minister, because the minister has an obligation, having supported section 59A, to explain what it means. He must explain that the section is not about someone who is beaten up after a Rangers versus Celtic game being treated better than someone who is beaten up after an Aberdeen versus Dundee United game, and that it is about a far more complex issue. The section is about people who, unfairly, experience prejudice because of their religion.
I have feelings that are similar to those of Roseanna Cunningham, in that I feel that we have now reached a point from which we cannot go back—we must accept section 59A because of that. However, I do not believe that section 59A will deal with sectarianism; it will deal with a few offences. The underlying root causes of sectarianism have still to be tackled. Sectarianism must be tackled whether it is to do with football or the complex issues that prevent people from progressing in their jobs because of the religion that they follow. Sectarianism is real and it is alive, and we as a Parliament have an obligation to deal with it, but not to trivialise it. I am afraid that despite Mr Gorrie's good intentions, his speech this afternoon trivialised the matter.
On a point of order, Presiding Officer. Will you clarify whether amendment 10, which relates to section 59A, and amendment 1 have been deemed competent in terms of the Scotland Act 1998? The amendments seem to deal with issues that fall under section L2 of schedule 5 to that act, which covers equal opportunities. I am curious to know whether the amendments have been deemed competent.
The amendments were selected according to the normal criteria. They are within the competence of the Scottish Parliament.
Amendment 10, which Donald Gorrie moved, is a technical amendment that the Executive supports. It is intended to put beyond doubt the requirement for the courts to state the extra element of a sentence that is attributable to an aggravation of religious prejudice.
The Executive does not support amendments 7 and 9, which would remove from the bill the provisions on offences that have been aggravated by religious prejudice. It is well known that those provisions were debated at some length at stage 2. I will reflect on some of those debates and some of the background to the provisions.
The cross-party working group that examined possible legislation to tackle religious hatred concluded that such legislation was desirable not on its own, but in concert with a package of other measures to combat religious hatred. When the First Minister and I published the working group's report on 5 December, we announced the Executive's intention to support such legislation and put out for consultation a range of other measures that must accompany the legislation.
Is the minister aware that I reserved the position of the Scottish Conservative and Unionist Party on legislation? I did not agree to legislation on the working group. I made that clear and I made a telephone call about that as soon as I saw the publication, because I felt that it did not make our position sufficiently clear.
I acknowledge that. Lord James summarised his position and that of his party, which I accept was his position.
Section 59A puts beyond doubt the principle of penalising people who use religious or sectarian differences as a motive, pretext or excuse for committing an offence. I will deal with some of the detailed points that have been made. Karen Gillon asked—fairly—about the words
"social or cultural group with a perceived religious affiliation".
Section 59A(2)(b) says that an offence is aggravated by religious prejudice if it is
"motivated (wholly or partly) by malice and ill-will towards members of a religious group, or of a social or cultural group with a perceived religious affiliation, based on their membership of that group."
That might refer to an arson attack or other attack of vandalism not on a religious building such as a church, but on a social club or a building that was used by a group that was perceived to have a religious affiliation, such as the Orange order.
Another important point is that a crime must have been committed. If the victim of the crime belongs to a social group that might be perceived to have a religious affiliation, that can stack up to create an aggravated offence under section 59A.
An offence must have been committed. When Lord James Douglas-Hamilton picked up on John Home Robertson's comments, perhaps he missed the point. In no way do I endorse the quotations that John Home Robertson read out. I know that Donald Gorrie apologised for them, as he said. However, in the circumstances that John Home Robertson described, no offence was committed under existing law, so there was no question of incitement, which the working group rejected. No offence such as assault or arson was committed with religious aggravation.
An original offence, such as an assault or an attack on a mosque or a synagogue, which, regrettably, has occurred, must have been committed and aggravated by a religious dimension. That is why I cannot readily accept what Roseanna Cunningham said. She seemed to throw up her hands in despair and said that fewer convictions would be secured. The important point is that there would still be an offence—it is not as if the police have got to go away and tackle new offences. The offence would be one that was aggravated by a religious overtone or motivation, with evidence of malice or ill-will being evinced by the perpetrator of the offence because of the religious affiliation of the victim.
Section 59A provides transparency for the victim and the wider community about how the criminal justice system should deal with that type of prejudice. Much has been said about sectarianism, but it is important to recognise that the provisions will apply to attacks on other faiths as well. Reports from some of the Muslim communities say that, in this time of tension, the international attention on their community makes them feel vulnerable. We will not accept or in any way condone attacks on people because of their religion. If such attacks happen, the fact that they are made because of someone's religion aggravates what in any event is a serious offence.
Lord James Douglas-Hamilton argued that, because of the existence of the common law, we should leave the offence to the common law. Similar arguments could have been brought—indeed, I understand that they were brought—when it was sought to codify racial aggravations in the Crime and Disorder Act 1998, yet that legislation has allowed us to track the incidence of racial aggravation through the criminal justice system. The legislation has been shown to work and to work well in practice. It allows fiscals to identify easily the incidence of racial aggravations in an accused's previous convictions in order to decide whether, for example, a case should be dealt with under summary or solemn procedure.
Will the minister confirm that it was not only Lord James Douglas-Hamilton who said that the current law was adequate but that that view was also expressed by the Sheriffs Association?
I know that the Sheriffs Association asserted that the offence was covered by the common law. Under the current system, however, it is up to the sentencer to reflect any perceived aggravation in the sentence. Concerns were, and are, expressed that it is not possible to ascertain how often that is done in practice. Section 59A changes that: it will require the sentencer to show how aggravation is reflected in the sentence. Although the courts have held that it is proper and not unlawful for a sheriff to reflect aggravation in a sentence, there is no consistency in knowing whether that happens in practice. Section 59A should help to build confidence that the criminal justice system treats religious aggravations seriously.
Having examined the case for racial aggravations so that we are able to track cases, fiscals can decide whether a case should be heard under summary or solemn procedure. We ought to extend that provision to cases in which religious hatred is involved.
We would not recommend lightly codifying any element of the common law, which after all has a number of admirable features. However, the considerable work that has been undertaken on the subject of religious hatred persuades us that such an intervention is justified in this case. It is simply not good enough to say that we are against sectarianism and against religious prejudice: people expect something to be done about sectarianism and religious prejudice.
Although a range of issues has been put out for consultation as a result of the working group's report, I believe that section 59A sends a very clear signal that we do not tolerate religious hatred. It will be a valuable weapon in our armoury in dealing with offences that involve religious prejudice.
As Mr Harper indicated, the groups that are covered by his amendment 1 are based on the European anti-discrimination framework, which is designed to prevent people from discriminating against each other on certain grounds and provides for civil remedies for such discrimination in certain circumstances. However, it is not quite so simple to transpose that framework into the criminal law—indeed, it may not be appropriate to do so. The four groups that are covered in amendment 1 might not all be in need of the protection in quite the same way.
People in those different groups should be safe and should feel safe. No one is suggesting that it is somehow all right for those groups to be subjected to crime, but hate crime is a crime and such assaults and abusive behaviour are dealt with day in, day out in our criminal justice system. People who are defined by age, including the elderly, and by disability may arguably be subject to attacks simply because they are vulnerable rather than because of some provable motive of ill-will or malice against them because they are elderly or have a disability.
Amendment 1 does not deal with those groups' vulnerability; it deals only with social prejudice. The common law deals with a broader spectrum of aggravations in respect of those groups than does amendment 1. That is not to say that the underlying principle that Robin Harper has offered for debate is not worthy of further consideration. However, we believe that much more work needs to be done to determine the place of different groups in respect of aggravations.
During stage 2, we said that we would look into the matter further and, after discussions with Robin Harper and equality representatives, we are persuaded that such issues would best be examined by an Executive working group. Accordingly, I announce our intention to have further suitable consultations with the equality groups and to convene such a working group. Although we will not support amendments 1 and 2, I welcome the fact that Robin Harper has raised this important issue. I hope that he believes that it has been dealt with sensibly.
Jim Wallace has covered the ground well. I agree entirely with Karen Gillon that section 59A does not deal with the root causes of sectarianism. However, I believe that it makes a small step towards changing people's attitudes, which is what it is all about. It sends out a message that, for the first time, the law is taking seriously religious and sectarian hatred and the crimes that are committed because of that hatred, which are not currently on the statute book.
I appreciate the fact that members are concerned about the section. I have lived with the proposition for two years and I think that I understand it. However, some members are new to this curiously worded section, which, like all laws, is not really in English but in legalese. The proposition does not create any new offences. It takes existing offences—not words that may have been foolishly written or said—and treats them more seriously. That is a modest and reasonable approach towards a very complicated problem that I do not claim to understand any better than anyone else. I urge members to support the Solicitor General for Scotland and Jim Wallace, who have set the matter out very well, and I press amendment 10.
The question is, that amendment 10 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (North-East Scotland) (SNP)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gibson, Mr Kenneth (Glasgow) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harper, Robin (Lothians) (Grn)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North-East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McGugan, Irene (North-East Scotland) (SNP)
McLeish, Henry (Central Fife) (Lab)
McLeod, Fiona (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Paterson, Mr Gil (Central Scotland) (SNP)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Reid, Mr George (Mid Scotland and Fife) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Welsh, Mr Andrew (Angus) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Wilson, Andrew (Central Scotland) (SNP)
Against
Aitken, Bill (Glasgow) (Con)
Davidson, Mr David (North-East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Goldie, Miss Annabel (West of Scotland) (Con)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Johnstone, Alex (North-East Scotland) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLetchie, David (Lothians) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Young, John (West of Scotland) (Con)
Abstentions
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
The result of the division is: For 95, Against 15, Abstentions 1.
Amendment 10 agreed to.
Amendment 7 moved—[Bill Aitken].
The question is, that amendment 7 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Davidson, Mr David (North-East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (South of Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Goldie, Miss Annabel (West of Scotland) (Con)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Johnstone, Alex (North-East Scotland) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLetchie, David (Lothians) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Mundell, David (South of Scotland) (Con)
Reid, Mr George (Mid Scotland and Fife) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Young, John (West of Scotland) (Con)
Against
Adam, Brian (North-East Scotland) (SNP)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gibson, Mr Kenneth (Glasgow) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harper, Robin (Lothians) (Grn)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North-East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McGugan, Irene (North-East Scotland) (SNP)
McLeish, Henry (Central Fife) (Lab)
McLeod, Fiona (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Paterson, Mr Gil (Central Scotland) (SNP)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robison, Shona (North-East Scotland) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Welsh, Mr Andrew (Angus) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Wilson, Andrew (Central Scotland) (SNP)
Abstentions
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
The result of the division is: For 17, Against 95, Abstentions 1.
Amendment 7 disagreed to.
After section 59A
In the light of the commitment that has been made by the minister, I will not move amendment 1.
Amendment 1 not moved.
I bring the discussion of amendments to a close; it will resume tomorrow.