Police, Public Order and Criminal Justice (Scotland) Bill: Stage 3
The next item of business is stage 3 proceedings on the Police, Public Order and Criminal Justice (Scotland) Bill. I will start by making the normal announcements about the procedure to be followed. This morning, we will deal with amendments to the bill. We will move to the debate on the motion some time in the afternoon.
For the first part, members will know that they require the bill itself—SP bill 46A, as amended at stage 2—the marshalled list of all amendments and the agreed groupings. The first division this morning will, as normal, trigger a five-minute suspension. Divisions will operate as normal thereafter.
Section 2—Duty to establish and maintain the Agency
Group 1 is on the Scottish crime and drug enforcement agency and the police complaints commissioner, and dissemination of information. Amendment 130, in the name of the Deputy Minister for Justice, is grouped with amendments 136 to 138 and 155.
These amendments set out in more detail the circumstances in which information may be disclosed by and to the Scottish crime and drug enforcement agency and the police complaints commissioner.
Amendments 137 and 138 will enable the agency lawfully to disclose any information that it obtains in the exercise of its functions to any person in the United Kingdom or elsewhere for certain permitted purposes. The amendments also enable any person lawfully to disclose information to the agency for use in the exercise of its functions.
Amendment 130 inserts certain subsections of what was section 17 into section 2, to make it clear that it is a function of the agency to disseminate information that it holds to a list of specified persons, at its discretion.
Amendment 136 removes section 17 from the bill to avoid any duplication in the provisions on the disclosure of information. This change is consequential on amendments 130, 137 and 138.
Amendment 155 is a general provision to allow the police complaints commissioner lawfully to disclose information to other public bodies or office-holders for the purposes of fulfilling their official functions or enabling the commissioner to fulfil his or her functions. It also allows persons lawfully to disclose information to the commissioner to enable the commissioner to fulfil his or her functions. The provision will ensure that there is no unintended bar to the kind of disclosure of information that will be necessary for the commissioner or another public body or office-holder to fulfil their functions effectively.
The onward disclosure of information that has been disclosed by the agency or the commissioner will be subject to restrictions. The information cannot be disclosed without the consent of the relevant body.
I move amendment 130.
We have no problems with the amendments in group 1, but I have a question about the disclosure of information by the agency or the commissioner. Will the minister clarify the position on any possible onward disclosure by other bodies? Once the agency or the commissioner has passed on information to another body, will either of them be able to control further onward disclosure of that information to third parties?
My question is along similar lines. I seek clarification of amendment 130, which will make it possible for the SCDEA to pass on information to various bodies. Paragraph (n) of the new subsection that amendment 130 seeks to insert in section 2 will allow information to be passed on to "the Scottish Administration", which I take to mean the Scottish Executive. Does that mean that the Scottish Executive—or the state—will have access to DNA records for its own purposes as a consequence of such information being passed on to it by the SCDEA?
I would welcome it if the minister could confirm that paragraph (p) of the new subsection that amendment 130 seeks to insert in section 2, which will allow the information to be shared with
"any other person who is engaged outwith the United Kingdom"
in carrying out similar activities, will not result in the blanket sharing of information with regimes such as, for the sake of argument, that in North Korea?
I can confirm that, under that proposed change, there will be no such blanket disclosures. The imposition of conditions will be considered.
Colin Fox asked about DNA, but I am not clear about what he was driving at because certain conditions apply to the use of, and access to, the DNA database. Scottish ministers could not simply access that information for whatever purpose they wanted. Not only are Mr Fox's fears misplaced, I am not sure that they are relevant to the context in which he raises them.
In relation to the onward transmission of disclosed data, any organisation that had information disclosed to it would be subject to the usual legal constraints, which are clearly defined. Information would be passed on only within a specific context and there would be clear legal safeguards on when it could be used.
Amendment 130 agreed to.
Section 3—Duty to provide the police support services
Group 2 is on the Scottish police services authority's functions in relation to part V of the Police Act 1997. Amendment 131, in the name of the minister, is grouped with amendment 132.
Amendments 131 and 132 relate to the definition of one of the police support services that the authority will be under a duty to provide. Section 3(2)(d) will impose a duty on the authority to carry out the functions of the Scottish ministers under part V of the Police Act 1997 other than those that relate to the making of regulations or orders on ministers' behalf. The amendments seek to clarify that the authority will be under a duty to carry out only the functions that are delegated under section 121 of the 1997 act. Section 3(8) of the bill will amend section 121 of the 1997 act to make it clear that the authority may perform functions under part V of the 1997 act other than those that relate to the making of regulations or orders. We seek to remove that exclusion from section 3(2)(d) because it is no longer necessary as a result of the link to section 121.
I move amendment 131.
Amendment 131 agreed to.
Amendment 132 moved—[Hugh Henry]—and agreed to.
Section 4—Strategic priorities of the Authority
Group 3 relates to the head and the deputy head of the agency. Amendment 15, in the name of the minister, is grouped with amendments 16 to 64, 178, 66 to 69, 179, 70 to 99, 182, 100 to 103 and 105 to 129. I take it that you will not address each amendment in turn, minister.
If you insist, Presiding Officer, I will speak to each one individually.
We listened carefully to what the Justice 2 Committee said about the status of the director of the Scottish Drug Enforcement Agency. When I gave evidence to the committee, I set out a number of reasons why I considered the rank of deputy chief constable was appropriate. I hope that that, along with my written response to the committee on the same matter, gives the committee some reassurance that the bill creates clear and modern arrangements for accountability and corporate governance under which the director will enjoy a very close relationship with the eight chief constables in Scotland—one that is based on mutual interdependence.
However, when I wrote to the committee earlier this month, I acknowledged the views of the committee, and of Jackie Baillie in particular, and undertook to lodge the necessary amendments to change the title of the post of director to that of director general in recognition of the status of the post. Unfortunately, the renaming of the director, and the renaming of the deputy director as the deputy director general, necessitated an extensive number of amendments.
Schedule 2 to the bill makes provisions for the first director general of the SCDEA to be the person who is, on commencement, the director of the Scottish Drug Enforcement Agency. Amendments 178 and 179 amend schedule 2 to make provision for the first deputy director general to be the person who is, on commencement, the deputy director of the Scottish Drug Enforcement Agency.
Amendment 182 is necessary to ensure that the provisions in schedule 2 enable anything that is authorised by the director general to be done by any other member of the agency, if so authorised by him. The provision does not extend to authorisations for property interference under part III of the Police Act 1997 or to authorisations for intrusive surveillance under the Regulation of Investigatory Powers (Scotland) Act 2000. Those authorisations concern highly sensitive surveillance techniques that can be authorised only by a chief officer. The specific arrangements for the authorisation of those activities in the director general's absence are set out the relevant pieces of legislation.
I move amendment 15.
I call Colin Fox.
I withdraw my request to speak, Presiding Officer. The minister has answered the question that I was about to ask.
I welcome the minister's acceptance of the views of the Justice 2 Committee. He has responded very fairly to all the views that were expressed. I welcome the change.
Amendment 15 agreed to.
Section 9—Liability for wrongful acts of certain constables seconded to the Authority
Group 4 relates to staff of the authority and the agency. Amendment 133, in the name of the minister, is grouped with amendments 134, 135, 170 to 174, 176, 177, 180, 181 and 183 to 187.
The amendments in the group relate to various provisions for the appointment of members and staff to the authority and the agency.
When we consulted on the bill in "Supporting Police, Protecting Communities: Proposals for Legislation" in February 2005, we sought views on ways in which to enable police officers from outwith Scotland to be able to undertake a period of secondment to the Scottish crime and drug enforcement agency.
The suggestion was met positively and the amendments in the group enable officers from throughout the United Kingdom to be directly seconded to the agency. In particular, the amendments provide that such seconded police officers will have all the powers and privileges of a Scottish constable during the period of their secondment to the agency. That will widen the pool of suitably experienced police officer talent that is available to the agency and will be of benefit both to the agency and to the wider UK police community. Where necessary, we are working with our counterparts in Whitehall to ensure that, where further changes to legislation that is outwith the competence of the Scottish Parliament are required, those will be achieved.
The amendments also relate to the powers of the authority under schedules 1 and 2 to the bill to provide for the terms, conditions and remuneration of constables who are seconded to the authority and of the director general, deputy director general and police members of the agency.
The amendments have two main purposes. The first is to make it clear that, in exercising its own powers, the authority must act within the framework of any powers that are exercised by Scottish ministers under the bill, once enacted, in respect of the terms and conditions of seconded constables or police members of the agency.
The second purpose is to allow the authority, if it wishes to do so, to set terms and conditions and to determine remuneration for its staff by reference to provisions that are made from time to time by or under regulations that the Scottish ministers make in respect of constables who serve in the police forces. That will enable the authority to keep the arrangements for seconded constables and police members of the agency aligned with those that apply to constables in police forces.
I move amendment 133.
Amendment 133 agreed to.
Amendments 134 and 135 moved—[Hugh Henry]—and agreed to.
Section 10—Grants
Amendment 16 moved—[Hugh Henry]—and agreed to.
Section 12—Members of the Agency
Amendments 17 and 18 moved—[Hugh Henry]—and agreed to.
Section 13—Strategic priorities of the Agency
Amendment 19 moved—[Hugh Henry]—and agreed to.
Section 14—Annual plans of the Agency
Amendments 20 to 24 moved—[Hugh Henry]—and agreed to.
Section 15—Annual reports of the Agency
Amendments 25 to 27 moved—[Hugh Henry]—and agreed to.
Section 16—General functions of Director of the Agency
Amendments 28 to 30 moved—[Hugh Henry]—and agreed to.
Section 17—Disclosure of certain information by the Agency
Amendment 136 moved—[Hugh Henry]—and agreed to.
Section 19—Scottish Ministers' power to modify section 18
Amendment 31 moved—[Hugh Henry]—and agreed to.
After section 19
Amendments 137 and 138 moved—[Hugh Henry]—and agreed to.
Section 19A—Direction by Director of the Agency
Amendments 32 to 37 moved—[Hugh Henry]—and agreed to.
Section 20—Liability for wrongful acts of police members of the Agency
Amendments 38 to 47 moved—[Hugh Henry]—and agreed to.
Section 21—Regulations relating to the Agency
Amendments 48 and 49 moved—[Hugh Henry]—and agreed to.
I now have to turn lots of pages in my script to reach group 5, which is on the requirement to consult on regulations relating to the authority or the agency. Amendment 1, in the name of the minister, is grouped with amendments 175 and 188.
The Scottish ministers' powers to make regulations in section 21 are modelled on the enabling powers in section 26 of the Police (Scotland) Act 1967, but the bill does not currently place an obligation on the Scottish ministers to consult the Police Advisory Board for Scotland in the same way as they must consult it on regulations that are made under section 26 of the 1967 act. Amendment 1 addresses that gap and ensures a consistent approach throughout the Scottish police service.
Similarly, the Scottish ministers have powers to modify the provisions in the 1967 act, and amendments 175 and 188 ensure that the use of such powers must also be subject to prior consultation with the Police Advisory Board for Scotland.
I move amendment 1.
I welcome the amendments, which will fill a gap. It is vital to have a statutory duty to consult the board on regulations that relate to the authority or the agency. I am glad that the Executive has addressed the gap.
Amendment 1 agreed to.
Section 30—Interpretation of Chapter 1
Group 6 is on joint boards and police authorities. Amendment 2, in the name of the minister, is grouped with amendments 3 to 8, 12 and 13.
The amendments in the group are purely technical amendments that are intended to tidy the various references in the bill to the eight Scottish police authorities and the joint police boards. They are simply intended to make the drafting more consistent and do not change the meaning of the provisions in question.
I move amendment 2.
Amendment 2 agreed to.
Amendments 3 and 4 moved—[Hugh Henry]—and agreed to.
Before section 31
Group 7 is on the role of the ombudsman in police complaints. Amendment 139, in the name of Jackie Baillie, is grouped with amendments 140, 145, 143, 144, 146 to 154, 156, 209 and 194.
I absolutely believe in the need to have an independent police complaints commissioner. Having a body that can satisfy the public that complaints against the police are being investigated thoroughly and independently is critical. The amendments that I have lodged do not seek to change that principle in any way.
I acknowledge that the Executive has a genuine desire to adopt a rights-based, transparent approach to complaints, irrespective of the institution. However, the danger is that we are about to create more institutional clutter, which common sense says we should avoid.
General concern is felt throughout the Parliament about the fact that the number of commissioners seems to have mushroomed and that, to all intents and purposes, some commissioners lack accountability. The Finance Committee is working to examine and review the number of commissioners, but the concern today is about the overlap between the proposed independent police complaints commissioner and the Scottish public services ombudsman. The committee took evidence on that at stage 1, and the matter was considered in the stage 1 debate in the chamber and at stage 2.
I want to highlight three areas of substance for the minister. First, the police are already within the ombudsman's jurisdiction. The ombudsman can investigate a complaint of maladministration or service failure. Therefore, we are talking about clear duplication. It has been suggested that there will be protocols between various agencies and the proposed commissioner, but I simply note that such protocols probably already exist between those agencies and the ombudsman. We are in danger of recreating something that we already have.
Secondly, I highlight the procedures that cover civilian staff who are employed by the police. Those staff are not officers and are subject to a separate disciplinary procedure. Their circumstances are more like those of staff whose work is already covered by the ombudsman.
Thirdly, in these days of efficient government, organisations with similar back-office and service functions have opportunities to share.
I want to remind members of a little bit of the Parliament's history. We created the Scottish public services ombudsman in 2002 because we rightly wanted an open, accountable and easily understood complaints system that—most important of all—had the trust of the Scottish public. At that time, we merged the work of four ombudsmen to create a one-stop shop so that where people could complain would be clear, they would not be faced with institutional clutter and there would be no confusion about or barriers to making a complaint. The tragedy is that we sometimes forget the sensible approach that the Parliament has taken by creating more commissioners to deal with complaints.
Our partnership agreement commits us to having an independent police complaints commissioner, and this suite of amendments does exactly that. We should not reinvent something that we already have. We were right in 2002 to introduce the clarity that is involved in having a one-stop shop for complaints in the Scottish public services ombudsman, and that approach is right now. It is efficient and would deliver an independent police complaints commission in Scotland.
I move amendment 139.
I sympathise with the debate on the size of government, on which Jackie Baillie commented. We have debated the issue before: members of all parties have discussed the proposed Scottish commissioner for human rights and the possible superfluity of tsars in this country, for example. However, the proposed police complaints commissioner is a distinct case.
That there has been no opportunity for the specific matter to be dealt with has been a gap and a long-running sore in Scotland, if I can put things in that way. The SPSO has served us well. There are other issues that we must address in that respect, but that debate is for another day. If we did not go with the police complaints commissioner, as detailed in the bill, we would not serve well the current SPSO or any person who holds that post in the future; we would also not stick to the agreement that has been made. Let us be clear: numerous parties have signed up to the police complaints commissioner proposals. There is consensus not only among people within the body politic in the chamber but among the police and other parties that that is the way to go. The proposals that have been made have not satisfied the desires of some people and may not work out, but consensus has been reached about where to go.
I have sympathy for the broader ethos of Jackie Baillie's proposals, but we should not seek to try to create smaller government in this case. That battle is for another day. A distinct position is needed. We should stick to the agreement that has been signed up to not only by members of the committee, but by other organisations and members of the police service.
It is novel for a Labour member to talk about efficient government. Obviously, we would like there to be efficient government in other areas. However, it is important to see the police complaints commissioner as a special case.
We totally agree with the minister. Members of the public have great concerns about complaints against the police and want to feel confident that they are being dealt with. The minister's proposals mean that such complaints will be dealt with almost in a goldfish bowl. The position is clear: confidence in the system would be certainly helped. The police would also feel more confident in dealing with one office, rather than an office within another office. We support the minister's line.
It is even more novel for a Conservative spokesman to support the concept of an independent police complaints commissioner, as the Conservatives did nothing to set one up during their years in government.
I appreciate Jackie Baillie's intentions. She is being consistent with the desire that she showed at stage 2 to reduce the number, if not the scope, of commissioners in Scotland. The Parliament has established independent complaints-handling commissioners and will, no doubt, establish others. The debate about amendment 139 is whether the Scottish public services ombudsman is the right body to have the functions that we are establishing today.
It is right that there should be a relationship between the independent police complaints commissioner and the ombudsman, but I do not think that they should be one entity. Perhaps the most persuasive, if subtle, arguments against what is proposed in amendment 139 were made indirectly by the ombudsman herself when she outlined her views on the establishment of the Scottish legal complaints commission to the Justice 2 Committee recently. The ethos of the ombudsman is inquisitorial dispute resolution. Although that is not always inconsistent with a body that can find guilt and impose penalties, I think that the emphasis is different.
Like the Scottish legal complaints commission, the police complaints commissioner will be able to make disposals where he or she finds fault and to issue reports and make recommendations. The current ombudsman was very clear about how she sees the role of the ombudsman's office. The character of that body, which wishes to work with public agencies in Scotland to improve services, would be altered if it was made a specific complaints-handling and oversight body for one sector of the public services—the police—and not others. For example, there would be a lack of clarity in the public's mind about there being a general ombudsman's office that has specific police complaints-handling capability and the ability to make appropriate disposals in relation to, for example, a chief police officer but not a chief executive of a health board.
I am afraid that Jackie Baillie's amendments would create more confusion, not less; therefore, I will not support them.
Without wishing to contradict the views that were expressed recently by members on the Scottish National Party front bench, I say that I have considerable sympathy with the points that Jackie Baillie has raised. They relate to some general questions that the Finance Committee is considering in detail. There is growing agreement in the Parliament that Parliament needs to reflect seriously on the climate, atmosphere and infrastructure that we have created, over the years, in relation to the role and activity of the ombudsman sector.
Some of the issues that are surfacing today also surfaced in our consideration of the Scottish Commissioner for Human Rights Bill. They are issues that Parliament will have to reconsider in a strategic way. As a consequence of a range of different and distinctive decisions that we have taken, all for good reasons, we are now faced with an infrastructure that is too complicated for members of the public, too burdensome, too bureaucratic and—something that we should always think about—too expensive for the taxpayer.
I refer members to the revised financial memorandum to the bill. In paragraph 269 on page 46, the Executive sets out its belief that the police complaints commissioner for Scotland should have seven members of staff at a distinct location and should incur running costs of around £700,000. That brings the total running costs of the organisation to £1 million. We could say that, in the grand scheme of the £28 billion expenditure of the Scottish Executive, £1 million is not so much. However, £1 million here and £1 million there—which is increasingly what costs in the ombudsman sector are amounting to—soon adds up to a formidable amount of expenditure to which we must be careful about committing ourselves in this exercise.
I am disappointed that the financial memorandum makes no mention of the sharing of services. There is no talk in the financial memorandum about the fact that some of the staff who are currently employed by the Scottish public services ombudsman could carry out investigatory work on behalf of the police complaints commissioner, meaning that there may be no requirement for us to employ seven additional complaints investigators to consider issues on behalf of the Scottish police complaints commissioner. Those people could be based within the ombudsman's office and could either be seconded or contracted to undertake some of the investigatory work on the police complaints commissioner's behalf.
If the Government deems Jackie Baillie's proposition that the Scottish public services ombudsman could carry out the police complaints commissioner's function to be unacceptable and believes that we must have a named commissioner, we could strip back the proposal simply to employ a named commissioner—one individual, who might cost us something in the order of £70,000 to £80,000—and use the existing Scottish public services ombudsman infrastructure to carry out some of the day-to-day operational and investigatory activities that the commissioner would have to undertake. Even if we do not accept the whole of Jackie Baillie's proposal, that type of approach would give us a more efficient system that was simpler to understand and provided much more value for taxpayers' money. There is an efficiency argument in the points that have been raised about the financial memorandum, and the Government needs to reflect on that.
Notwithstanding John Swinney's views on efficiency, shared services and shared buildings, does he understand that there may be differences in the ethos or scope of commissioners' work, which can range from complaints handling and making appropriate disposals if fault is found, with the role of an ombudsman, the emphasis of which is on working with public sector agencies to develop better services, as the Justice 2 Committee heard last week from the current Scottish public services ombudsman? There may be disparity if the ombudsman was able to make such disposals in only one area of public service.
Perhaps I have not made my position sufficiently clear: I am saying that, if we do not accept Jackie Baillie's proposal in its entirety, we could accept the need to appoint a distinct police complaints commissioner for Scotland—an individual officer-holder. However, we do not need to create a separate bureaucracy that would end up costing us perhaps an extra £900,000 when the Scottish public services ombudsman's office could be contracted to deliver the ethos that I readily accept the police complaints commissioner for Scotland might need to pursue. That approach would deliver efficiency and the different climate that Jeremy Purvis talks about.
In his speech, Mr Purvis made points about the evidence that the Scottish public services ombudsman gave to the Justice 2 Committee on the proposed Scottish legal complaints commission. The ombudsman made the fair point—which I understand that she also made in written evidence during the Justice 1 Committee's consideration of the Scottish Commissioner for Human Rights Bill—that there is potential for functions to be duplicated, which would raise jurisdictional issues about where an individual should go if they had a complaint about a particular aspect of a public service or the police.
We must be careful that we do not clutter up the jurisdictions that we consider and end up with a situation in which not one commissioner but two or, heaven forfend, three commissioners could examine the same aspect of public policy. None of us in the Parliament can honestly put our hands on our hearts and say that we have created an architecture that is so well defined, so simple and so clearly compartmentalised that it does not create confusion in the public mind. One of the strongest points that Jackie Baillie made in speaking to her amendments was that the decision to establish the Scottish public services ombudsman was taken to simplify the architecture of government in Scotland. Seven years into devolution, after having created numerous different commissioners, we will have to revisit that architecture—the Finance Committee is doing that—because we have made it too complicated and congested and it costs too much money.
I hope that there is an emerging parliamentary consensus around those points. I am very sympathetic to the points that Jackie Baillie has raised.
I hope that in his closing remarks the minister will say something about the Government's perspective on paragraph 269 of the financial memorandum, because it raises big issues—not of money, but of duplication and congestion—with which Parliament is obliged to deal.
Jackie Baillie is right to highlight the public's real concerns about how complaints against the police are currently handled. In the partnership agreement, the Executive committed itself to establishing an independent police complaints commissioner. In my view, that recognised the fact that the public feel that they are not well served by the current complaints handling system. Jackie Baillie's amendments highlight the need for full accountability, an easily understood complaints system—which we do not have at the moment—and to avoid institutional clutter. She argues that the Scottish public services ombudsman would be better placed to provide that than the Scottish police complaints commissioner. Her amendments divulge a core fear that the current proposals for a Scottish police complaints commissioner are inadequate. There is a fear that the commissioner will be toothless and that their powers will not enable them to address the real concerns that exist.
In my view, Jackie Baillie's amendments are a move in the wrong direction. Rather than being vested in the ombudsman, the powers of the Scottish police complaints commissioner should be augmented to include not just the powers of the ombudsman but the services, roles and functions of Her Majesty's chief inspector of constabulary in this regard. Jackie Baillie seeks to restrict the powers of the Scottish police complaints commissioner, because she feels that there is duplication and the ombudsman service is her preferred option. In my view, there is something to that. She is concerned about bureaucracy, but between the three organisations involved there are nowhere near enough powers to address the concerns that exist among the public.
Of course there should not be three bodies with roles in police complaints handling. There should be one body that is serious about addressing the issue, because time after time the public have made it clear in their consultation replies to the Executive that they are looking for a system in which they have full confidence and for a single gateway that is truly independent. They are looking for a system that takes serious police complaints handling away from the police altogether and, at the same time, ensures that decent police officers have nothing to fear from a Scottish police complaints commissioner with full powers to address such complaints. The bill was supposed to strike that balance, but instead it misses a huge opportunity to address the public's fears about the current set-up and their desire for a system in which they have confidence and that is accountable and easily understood, so that they know where to take their complaints in the first instance.
The Executive is milking the cow by accepting the need for a commissioner but, in effect, its proposals kick over the bucket. In that respect, the bill fails the public, because its provisions do not go far enough. Jackie Baillie's amendments are absolutely right to stress the need to have one organisation with proper, full powers that is accountable to and trusted by the public, but in my view the aim should be to enhance the role of the Scottish police complaints commissioner, rather than to have three roles, as is the case at present.
This has been an interesting, useful and informed exchange. It will be useful if I remind members why we are establishing the office of commissioner. The commissioner will oversee how police bodies in Scotland handle complaints, will provide support and guidance and, critically, will be an independent body to which dissatisfied complainers can turn. A number of members have emphasised why we need such a body. There is a public expectation that complaints should be seen to be handled appropriately, effectively and objectively. I believe that the work of the commissioner will lead to increased public confidence in the handling of police complaints.
The functions could not readily be carried out by an existing office-holder. All members have recognised that police complaints are different from other types of complaint and require a distinct approach that takes account of those differences.
I understand fully the point at which Jackie Baillie is driving, ably supported by John Swinney. It is true that a debate is emerging about how commissioners operate, their relationship with Parliament and how they relate to the public. I noted John Swinney's points about the work that is being carried out by the Finance Committee and I do not want to prejudice that developing debate. However, notwithstanding my sympathy for some of Jackie Baillie's points, her amendments are not the best way to address those concerns. As Kenny MacAskill said, it is a matter for another day.
I give John Swinney an assurance that we fully intend to adopt a shared services arrangement. He ably made the point that certain services could be provided jointly with other agencies and there is no reason for duplication. I hope that that possibility is considered in all that we do. I also hope that costs will be offset by the more efficient handling of complaints within police forces but, as John Swinney correctly said, we need to be careful about how we use scarce public resources to best effect.
Jackie Baillie's points are indeed relevant to a wider discussion, but points made by all members emphasise clearly that the Parliament is committed to the establishment of an independent police complaints commissioner. We are doing that in the most appropriate way. It is for Parliament to return to the matter and to others as it deems appropriate in future.
I thank John Swinney for his helpful comments, which are not necessarily good for his career, but good for the debate. I hope that ministers will take away his practical suggestion to consider the numbers employed by the proposed independent police complaints commissioner.
John Swinney's other comments have considerable merit. One can have an independent police complaints commissioner with a distinctive role within the ombudsman's office. The ombudsman already has a specialist role, operates in complex areas and deals with health, housing, local government, police and a range of other public bodies. In lodging my amendments, I want to create a one-stop shop that is transparent and simple for the ordinary people we represent to understand and a single complaints body, independent of the police, that is easy to access.
I recognise the emerging parliamentary consensus on the need to reconsider the number of commissioners. I accept that we need to do that in an holistic way. For that reason, I will withdraw amendment 139 in anticipation of future changes from the Parliament.
Amendment 139, by agreement, withdrawn.
Section 31—The Police Complaints Commissioner for Scotland
Amendment 140 not moved.
Section 34—"Relevant complaint" and "person serving with the police"
Amendment 145 not moved.
Section 32—Examination of manner of handling of complaint
Group 8 is on the handling of police complaints by the appropriate authority. Amendment 141, in the name of the minister, is grouped with amendment 142.
Amendments 141 and 142 enhance the commissioner's ability to help police organisations to deal effectively with complaints. If a complainer keeps taking a complaint back to a police organisation, it would be useful for that organisation to be able to refer the matter to the commissioner. If satisfied that the organisation has taken reasonable steps to address the complaint before referring it, the commissioner will be in a position to bring the matter to a conclusion. That will help to avoid police time being spent fruitlessly on the same issue.
I move amendment 141.
The minister has gone some way towards explaining the practical processes that would be involved in what the amendments propose, in particular how the commissioner would deal with the case of an individual who complains repeatedly. However, when I read amendments 141 and 142, I was slightly unsure about how they would operate in practice. I thought that there was a typographical error in amendment 142, where it refers to whether the appropriate authority
"has taken reasonable steps to deal with the complaint."
I expected the word "not" to come before "taken", which would mean that the commissioner would get involved when "reasonable steps" had not been taken rather than when they had been taken.
Will the minister comment on whether my interpretation is correct? If not, what happens if no reasonable steps have been taken? The minister seemed to say that if reasonable steps have been taken, the commissioner will get involved in the process. If nothing has been done to deal with a complaint, does that mean that the commissioner will have no role in a complaint-handling review?
It is important to clarify that what we propose will not remove the ability of a complainer to take a complaint to the police complaints commission. We are talking about situations in which an individual has persisted in making complaints to a police organisation but has never approached the police complaints commission. Our proposal will give the police the opportunity, if they have already carried out investigations and believe that they can go no further, to refer the complaint to the commissioner, who will consider the complaint and decide either that there is further work that the police body could carry out and so send the complaint back or that reasonable steps have been taken, the procedure has been exhausted and they will now look at it and come to a conclusion. That will be the case even if the complainer has never referred the complaint to the independent police complaints commissioner.
Amendment 141 agreed to.
Amendment 142 moved—[Hugh Henry]—and agreed to.
Amendment 143 not moved.
Section 33—Duty of Commissioner not to proceed with certain complaint handling reviews
Amendment 144 not moved.
Section 35—Appointment of person to reconsider complaint
Amendment 146 not moved.
Section 36—Reconsideration of complaint: duties to keep persons informed
Amendment 147 not moved.
Section 37—Power of Commissioner to discontinue reconsideration
Amendment 148 not moved.
Section 38—Final reports on reconsideration
Amendment 149 not moved.
Section 38A—Appropriate authority in relation to a complaint
Amendments 50 to 53, 5 and 6 moved—[Hugh Henry]—and agreed to.
Amendment 150 not moved.
Section 39—General functions of the Commissioner
Amendment 151 not moved.
Section 40—Reports to the Scottish Ministers
Amendment 195, on the police complaints commissioner and reports to the Parliament, is in a group on its own.
The proposal to establish an independent police complaints commissioner arose from the Executive's response to widespread views that in-house complaints handling is no longer fit for purpose and simply does not enjoy the public's confidence. Therefore, the question arises whether the Executive's proposal has come up with the right balance.
In the partnership agreement, there were plans for the introduction of a truly independent, trusted, transparent and accountable system for handling complaints against the police. Members recognise that the mood for such a transparent and accountable system is plain and overwhelming. However, what the bill proposes, which amendment 195 seeks to change, is that the police will continue to deal with investigations in the first instance through an in-house system. In his earlier remarks, the minister highlighted the fact that the commissioner will oversee how the police deal with complaints in-house and may consider requests from people who are dissatisfied with how the police have handled their complaint. I am happy to highlight again that we are talking about non-criminal matters and that complaints in relation to criminal matters will still be handled by the Crown Office and Procurator Fiscal Service.
The commissioner may consider requests from people who are dissatisfied with the outcome of the in-house system's handling of their complaint. In such cases the commissioner may ask the police to reconsider the complaint, but he may also choose not to do that. A key consideration is what power the commissioner will have to force the police to reconsider a complaint. As members have said, the commissioner will share many functions with the Scottish public services ombudsman and Her Majesty's inspectorate of constabulary.
We should be clear about this: the police will still be the first organisation to which someone must go if they have a complaint against the police. After that, the person could go to the commissioner, who might or might not help them. The commissioner might help them by asking the police to think again, but a big question mark remains over what the commissioner could do if the police did not review the complaint. How many cases will the commissioner be able to order to be reviewed at one time? What powers and resources will he have? What will he be able to do if he thinks that the police are dragging their feet on an inquiry? Those are important questions about the role of the proposed police complaints commissioner for Scotland.
The Parliament's responsibility to consider whether the public can have confidence in the new system underlies those questions. What will the public think of the new system, compared with the current arrangements? We run a real risk that the public will think that the Executive is not sincere about setting up systems for handling complaints against the professions and the police. The public expect change and if the changes that they seek are not made, they will continue to press the Parliament for those changes. The bill will not go down well with the public if people think that the Parliament is protecting the police from legitimate complaints. The public are entitled to expect the highest standards of public service and democratic accountability of the people who serve them, including the police.
Against that background, amendment 195 would require the commissioner to report to the Parliament and not just to ministers, which would allow the Parliament to consider the progress that had been made. Given the understandable and legitimate concerns of the public about the handling of complaints against the police, amendment 195 would ensure that the Parliament could thoroughly and properly examine the commissioner's work and the effectiveness of the measures in the bill. We would be able to see for ourselves what progress was being made and whether public concerns were being addressed. The provisions in amendment 195 are necessary in an open, accountable, democratic system for handling complaints against the police.
I move amendment 195.
I understand the reasoning behind amendment 195. Colin Fox is attempting to ensure that the process will be as open and accountable as possible. However, he fundamentally fails to make his case on accountability, for a number of reasons. First, any report that is laid before the Scottish ministers is then laid before the Parliament. The fundamental point is that it is for the Parliament to hold ministers to account. How could we do that if we removed the line of accountability by requiring the proposed commissioner's report to be laid before the Parliament and not ministers?
Section 31(2) provides:
"The Commissioner is to be an individual appointed by the Scottish Ministers."
If amendment 195 were agreed to, a commissioner who had been appointed by the Scottish ministers would report to the Parliament, so the Parliament would have no role in holding ministers to account for the appointment of the commissioner. In effect, the approach in amendment 195 would break the link between the accountability of ministers for the commissioner's appointment and their accountability for the commissioner's report.
There is a straightforward problem with having an amendment that would leave out section 40, but not amending section 31(2)—that would be a mistake. Ministers will publish the commissioner's reports and lay them before Parliament. Parliament's duty is to hold ministers to account on that basis. Unfortunately, amendment 195 is the wrong approach.
I am surprised by amendment 195, because, as Stewart Maxwell rightly said, the Parliament's function is to hold ministers to account. The ministers who will be held to account are the Minister for Justice and the First Minister. The Minister for Justice is responsible for the bill and will be responsible for the working of the legislation once the bill is enacted. To let ministers off the hook as if they did not exist would be another extension of the quango culture, which the Conservatives certainly do not support. It is vital that the police complaints commissioner and the minister have a close working relationship—that is the essence of the matter. The commissioner's reports will come to the Parliament, so we will have a chance to examine what they say and what action, if any, the minister has taken. That is surely the correct democratic role for the Parliament.
If the minister is prepared to accept amendment 195, I would like him to explain clearly why he does so and why he sees no pitfalls in it.
I confirm that the Parliament will be kept informed about the matter, because we will be required to lay before the Parliament the commissioner's annual reports on the carrying out of his or her functions, which is a common arrangement with public bodies. As Stewart Maxwell and David Davidson laid out, amendment 195 would undermine fundamentally the need for ministerial accountability to Parliament. To an extent, I can understand the amendment because, when people start from the perspective of suspicion and conspiracy, they have no confidence in anything that anyone does. However, amendment 195 would not allow anyone to make progress.
In some of Colin Fox's remarks in speaking to his amendment, he sought, perhaps unintentionally, to undermine the positive move of establishing a police complaints commissioner. I hope that he will withdraw his amendment.
On that issue, I point out that I welcome the establishment of a police complaints commissioner for Scotland. I take issue with what the minister said about my remarks being based on suspicion and conspiracy; rather, they are based on a real anxiety among the public that legitimate complaints—let us accept that the public have a right to make legitimate complaints against the police—should be handled properly. If the minister is saying that he believes that a widespread feeling exists among people that such complaints are handled properly at present, we are at odds with each other. The essence of amendment 195 is the need for the Parliament to have an examinatory role and to be able to investigate the commissioner's effectiveness and the extent to which the operation lives up to the suggestions that the minister and the bill make.
I am happy to accept the minister's assurances that the Parliament will be kept fully informed about the commissioner's performance in carrying out his duties and that we will have opportunities to assess and investigate that. With that assurance, I am happy to seek agreement to withdraw amendment 195.
Amendment 195, by agreement, withdrawn.
Amendment 152 not moved.
Section 41—Provision of information to the Commissioner
Amendment 153 not moved.
Section 42—Power of Commissioner to issue guidance
Amendment 154 not moved.
After section 42
Amendment 155 moved—[Hugh Henry]—and agreed to.
Section 43—Interpretation of Chapter 2
Amendments 7, 8 and 54 moved—[Hugh Henry]—and agreed to.
Amendment 156 not moved.
Section 46—Constables engaged on service outside their force
Group 10 is on the application of sections 59 to 63 of the Police Act 1996 to certain offenders. Amendment 157, in the name of Hugh Henry, is grouped with amendment 193.
Amendment 157 amends the Police (Scotland) Act 1967 to clarify the circumstances in which constables who are engaged in specified categories of relevant service, including service with the authority, are to be treated as if they were members of a Scottish police force for the purposes of representation by the Scottish Police Federation. Amendment 193, although substantial in length, makes consequential amendments to the arrangements that are set out in sections 59 to 63 of the Police Act 1996 as regards the Scottish Police Federation, the Police Negotiating Board for the United Kingdom and the Police Advisory Board for Scotland.
The amendments simply insert appropriate references to the authority and agency into the existing provisions of the 1996 act in relation to those three bodies and ensure that constables who are seconded to the authority and police members of the agency are put on a similar footing to constables serving in police forces in that regard.
I move amendment 157.
Amendment 157 agreed to.
After section 69
Group 11 is on knife crime. Amendment 159, in the name of Charlie Gordon, is grouped with amendment 160.
Knife crime is a major public health hazard in our country. The extent of the crime of possession of knives or similar offensive weapons is reflected in a complex series of tables contained in answers to parliamentary questions in recent years, but what they add up to is a major culture of young men in Scotland carrying blades. It is a complex cultural phenomenon, requiring a multi-agency response, as exemplified by Strathclyde police's violence reduction unit. One cannot have led Glasgow City council for six years, as I did, without being painfully confronted by the evidence of the blade culture that is prevalent in my beloved home town.
Glasgow has had similar challenges in the past. In the 1950s, it took exemplary sentences issued by Lord Carmont to stop a razor-slashing culture that was growing in the city. In the 1960s, when I was a teenager in Glasgow, I remember the sporadic terror wreaked in the city centre's dance halls by gangs intent on recreational violence. Today's challenge is a much larger one. Every weekend, hundreds of young Scottish men dress to go out and carry a blade as if it were a fashion item. We have an average of one knife homicide a week: the tragic apex of hundreds of stabbings a year and thousands of cases of carrying blades. Two years ago, in Glasgow, I suggested that we might end up with so-called mandatory custodial sentences for possessing blades unless we could reverse that blade culture by other means. Last autumn, in the Cathcart by-election, I called for stiffer sentences for knife crime, more police powers to arrest suspected blade carriers and for a raised age limit for knife purchasing. I congratulate the Executive on the fact that all three issues are reflected in the bill. I am also delighted by the knife amnesty and by the deployment of 1,000 new metal detectors, purchased by the Executive for the police.
Amendment 159 reflects firearms legislation, in that it would provide for custodial sentences for possession of a blade unless there were exceptional circumstances. I note that the Justice 2 Committee does not support so-called mandatory sentences, although I note also that the Association of Scottish Police Superintendents advocated such sentences in its evidence. Subsequent to my lodging amendment 159, the Lord Advocate has issued new guidelines to courts and fiscals on knife crime. It did my heart good to read them.
Anyone caught with a knife will be arrested and held in custody. Bail will be opposed where there are previous knife or violence-related convictions. Cases will be referred to higher courts if there are similar previous convictions, which means that tougher sentences are likely. Prosecutors will seek curfew and exclusion-zone type conditions to be attached to sentences.
The Edinburgh Evening News—not a newspaper that I normally read, I confess—headlined the Lord Advocate's new guidelines:
"Jail term for anyone caught carrying knife in new blitz".
I would like to make that headline a reality, if we believe that that is what it will take to reverse this appalling blade culture. However, I do not want to cut across the unity—perhaps the near unanimity—in this chamber on the measures that are proposed in the bill, along with the measures taken by the Lord Advocate and the Justice Department to assist the operational deployment of the police in dealing with knife crime. However, the issue of mandatory sentences is not necessarily going to go away, and I will be interested to hear the minister's response.
I move amendment 159.
As Charlie Gordon and others have said in this chamber on many occasions, the horrific and shameful record of knife crime and the possession and use of knives in Scotland today is a serious and on-going debate. I commend all the efforts of those throughout Scotland and in the chamber to engage with the issues that confront us in dealing with this scar—no pun intended—on our society. I am happy to put on the record my support for the amnesty that was launched this week throughout Britain. I believe that it has a role to play. It encourages people to bin the knife and save a life—probably their own.
Of course, we all have to be sombre and serious and recognise that our record is poor and that the progress that we are making is nowhere near good enough in dealing with the problems of young men who go out carrying. Despite the best intentions and efforts of many of the professionals—I pay tribute to them—in recent months and years in trying their best to deal with the problem, we are not making sufficient progress.
I believe that those members who argue for longer sentences for the possession and use of a blade are well intentioned, but I do not share their faith in that approach. We have seen it fail again and again. Sentencing policy will not make the difference and bring about the changes that those members seek. I understand and share their frustrations, but I do not believe that the necessary change in young men's beliefs and attitudes will be achieved via that route.
We all know that most of the young men who carry knives are inured to the threat of this or that sentence. They know that it is illegal to carry a knife and still they do it. Amendment 160 seeks to turn our attention in another direction that will have better prospects of success in the long run. It involves defeating the problem at its roots rather than dealing with the outcomes.
As Charlie Gordon and others have said, when we look at the facts and figures, we begin to appreciate the signals that are being sent. Why is the problem so much more embedded in Glasgow and the west of Scotland? Why is it that the young men who go out determined to get steaming drunk on Lothian Road in Edinburgh, or in so many other parts of Scotland on a Friday and Saturday night, and who end up in a fight at the taxi rank do not resort to pulling blades on one another to anywhere near the same degree as is done in Glasgow?
We know—the police would back this up—that we are dealing with a problem that is about more than just sentencing policy. We are dealing with a societal problem of culture and behaviour. We need to get inside the heads of young laddies who think that it is cool to carry a blade. They think that it is hard. They think that it makes them big. However, it does not. It makes them wee and timid. Their inadequacies are exposed to every last one of us by the fact that they need to hide behind a 5in steel blade because they do not have the life skills and ability that the rest of us have to avoid getting into such senseless, stupid and dangerous positions in the first place.
As the minister knows, I lodged a similar amendment at stage 2. I accept that I presented the amendment at stage 2 in opposition to the Executive's proposals to double the length of sentences for possession and use of a knife. I still have no faith in sentencing, but I present amendment 160 today not in opposition to sentencing policy—despite my qualifications about it—but as a way of allowing the courts another option that gets inside the head of teenage laddies. We all know that such teenagers will not get any better if they are locked up in Barlinnie, where they tell stories and pass time with other knifers. Amendment 160 offers the court the opportunity, where appropriate, to use probation to send the offender for counselling to persuade him to break the cycle and drop the knife. I commend amendment 160 in my name.
During stage 1, the Justice 2 Committee heard depressing evidence about the scale and consequences of violence with knives in Glasgow. Charlie Gordon has repeated that evidence eloquently and members have heard the dreadful statistics. In 2005, there were 72 murders with a knife in Scotland and, in 2003, there were 193 attempted murders with a knife in Strathclyde alone. We are already seeing the impact of John Carnochan's violence reduction unit, which is doing an excellent job, but our task as a Parliament is to respond to the issue and to lead to the solutions.
The two options that we are being given are the mandatory prison route and, it would seem, the almost mandatory non-prison route. Amendment 159, in the name of Charlie Gordon, is wrong because it does not allow flexibility for a first-time offender or someone who has simply been stupid in carrying a knife but would not do it again if they were cautioned by the police or given some other type of disposal. However, there will be occasions when custody is absolutely the right approach. For the serial offender and for those who pose a real threat to society by their conduct in carrying a knife, prison is the route. Colin Fox is absolutely right to say that we need to address the underlying issues, but the option in many cases must be a mix of custody, community sentencing and counselling as well as programmes to address the offending behaviour of the individual. Like other Liberal Democrats, I do not support making mandatory sentences for knife offences equal to those that are imposed for firearms offences, but I am persuaded of the need to have sentencing for such offences more aligned with sentencing for firearms offences.
On 8 December, I asked the First Minister whether he would support amendments to the bill at stage 2 to make sentences for possession of a knife tougher and more on a par with those for gun crime and also to address the underlying reasons why too many young men, as Charlie Gordon said, go out on a Friday or Saturday night carrying a dangerous weapon. His reply at that time was encouraging:
"I will be interested to see those amendments. The approach to tackling knife crime, gun crime and violence in Scotland needs to be comprehensive. It needs to cover tougher sentencing and higher-profile policing, particularly on the streets of our city centres at night. It must also ensure that we change the culture, particularly among young people. … That will need to be backed up by higher-profile policing and by tougher sentences through the courts."—[Official Report, 8 December 2005; c 21600.]
I lodged an amendment at stage 2 that would have introduced a new type of disposal called a custody and behavioural order, which would have allowed courts to be flexible in sentencing by allowing a mix of custody, community and rehabilitative programmes within a window of 18 months for offences that are tried in the summary courts and for a maximum of seven years for sentences in the sheriff court or High Court. I had thought that the custody and behavioural order was entirely consistent with what the First Minister said, but Labour MSPs voted against my amendment.
Despite the figures on gun crime—in 2005, there were 72 murders with a knife in Scotland whereas Executive figures show that the number of murders with firearms during 2004-05 was eight—Jackie Baillie spoke against my amendment at stage 2. She said:
"it might have the … effect of causing young men to decide to run around with guns instead of knives because the penalty is identical."
Hugh Henry said:
"I worry that we might send out a message that those carrying a gun will be dealt with in the same way as those carrying a knife."—[Official Report, Justice 2 Committee, 28 March 2006; c 2149-50.]
He felt that much tougher sentencing for knife crime would mean more gun crime. I simply do not agree.
The forthcoming sentencing bill will, I hope, allow us an opportunity to revisit this very important issue. I hope that, in proposing tougher but better sentences for knife crime, we will get the support of the Scottish National Party, which voted against it, the Conservatives, who voted against it, and Labour, which voted against it. After all, as the Executive's own consultation paper on knife crime said,
"These continuing high levels of knife crime represent an ugly and destructive aspect of our society and are totally unacceptable."
As Charlie Gordon said, mandatory sentencing was considered by the Justice 2 Committee at stage 2. It was not supported.
Mr Purvis is right to talk about the flexibility of the courts in choosing the appropriate sentence on a case-by-case basis. If an individual—mistakenly, of course—puts a knife in their back pocket and goes out with it on a Saturday night, and is then approached by the police and found to have a knife, they should be dealt with appropriately, but not necessarily placed in custody for a substantial period of time. That would be the wrong thing to do; the right thing to do would be to give an appropriate sentence, not a mandatory custodial sentence.
Can Mr Maxwell foresee a situation in which someone, on their third offence of carrying a knife, could be given an appropriate disposal of four years in prison and three years of community sentence?
The sentence for a repeat offender should be different from the sentence for somebody who has been caught for the first time—that is a normal part of sentencing procedure. However, it is not for me to say what the appropriate sentence is; that is up to the sheriff or the judge. They can put people behind bars, or they can give out community sentences, as appropriate. That is their role and responsibility.
As he mentioned, Jeremy Purvis's amendments were rejected at stage 2. It was quite right that they were rejected; seven years was far too long a sentence. This is not about the length of the sentence but about the appropriateness of the sentence. If Mr Purvis's amendments had been successful, people could have gone to prison for longer for carrying a knife in public than for raping somebody. The sentence has to be appropriate. This is not about being tougher and tougher on one particular crime, while ignoring the fact that each crime has to be considered relative to all other crimes.
Will the member take an intervention?
Not at this stage.
I was glad that the Justice 2 Committee supported my amendments on summary justice; a doubling of the sentence from six months to one year was agreed. I know that the Executive intended to introduce that change in a summary justice bill, but it was appropriate—given that we were doubling the sentence on indictment cases—that we should deal with summary cases at the same time. I was glad that that happened.
The bill contains a number of welcome changes, including the raising of the age and the doubling of the sentences. However, as many have said, there is the question of culture—the fact that it has become the norm for young men to go into town on a Saturday night while carrying a weapon. Once those young men have had one or two drinks, it is all too easy for them to get into trouble and use that weapon. If they were not carrying a knife, there would be a fist fight. That is bad enough, but knives lead to serious assaults and, in many cases, fatalities.
The knife amnesty is to be welcomed, as are the reporting system pilots in Glasgow and Paisley. At stage 2, I lodged an amendment seeking to make it mandatory that hospitals reported to the police. There is evidence of a clear break between what doctors in hospitals know about the level of knife carrying and what the police know. The deputy minister accepted that point and talked about the pilots that were then just starting up. I hope that those pilots are successful and that they are spread across the whole of Scotland. The police will have to have full information if they are to be allowed to do their job properly.
I welcome the work of the violence reduction unit, which is doing a marvellous job, and I am glad that its work will be rolled out further. In addition, I welcome the Executive's conversion to the use of metal detectors. As the Evening Times has reported, I have campaigned for the use of hand-held metal detectors in Glasgow.
You should be thinking about winding up.
It is important that a range of measures are used to tackle knife crime. That is the appropriate way to go, rather than to make custodial sentences mandatory.
Given that the courts already have the flexibility to do what Colin Fox proposes in amendment 160 that they be enabled to do, frankly I do not think that it is necessary to amend the bill in that way. We will not support amendment 159 or amendment 160.
Charlie Gordon highlighted the problems of knife crime extremely well—especially those that are faced in Glasgow—and raised a number of important points. Although the purchase of knives from legitimate outlets obviously needs to be tackled, back-street transactions are a bigger problem. The amnesty is to be welcomed. The pilot use of metal detectors that has been going on in some cities for some time has been extremely successful.
There will be a sentencing bill and, in the view of the Conservatives, it is not for us to fiddle with the courts' discretion. It is important that the courts understand what is going on, but I am sure that the Lord Advocate gives guidance to which the courts—and those who work in them—pay attention. It is up to them to decide which of the various available disposals is appropriate.
In Aberdeen, there has been a successful trial involving taxi rank wardens, the deployment of which has almost eliminated any kind of disturbance, never mind a fight that escalates to the point at which someone takes out a knife, which tends to happen on bank holidays and at Christmas, for example. That has been a good trial.
Amendments 159 and 160 are misplaced. We need to consider proper proposals in the sentencing bill. The issue must be examined thoroughly; we should not just take a pot shot at the problem by bolting on a few provisions to the Police, Public Order and Criminal Justice (Scotland) Bill. We must recognise that knife crime is a major problem that must be dealt with by handing out very stiff sentences that are appropriate to the circumstances in which a knife has been used or possessed—even possession entails a risk. We believe that the courts must keep their discretion, so we will not support amendment 159 or amendment 160.
I say to Colin Fox that I believe that sentencing policy matters. I accept that knife carrying is a cultural malaise in Scotland, but it would be remiss of us if we did not use all the powers that are available to us to send out a message that it is unacceptable—not just to politicians, but to the people of Scotland—to carry a knife and that someone who does so is likely to face a jail term.
Charlie Gordon was correct to point out the cultural problems that exist. I accept that, under the proposal in amendment 159, custodial sentences would not be mandatory, but would be handed out except in exceptional circumstances. Although I oppose mandatory custodial sentences—I will explain why—I think that it is unnecessary to legislate for the imposition of custodial sentences except in exceptional circumstances because, frankly, that is how we should expect our courts to deal with the matter. As Charlie Gordon said, the Lord Advocate has handled the issue correctly.
Sentencing matters. Charlie Gordon highlighted its effectiveness in dealing with razor gangs. It was also effective in the 1980s when there was a specific problem with armed robberies of bank vehicles. Quite draconian sentences were suddenly brought in, which caused a disparity between the sentences that people would have received in 1979 and those that they received for the same crime in 1980. That was a necessary measure to address a specific problem in society.
I do not believe that mandatory custodial sentences are necessary. Such an approach is wrong. We have the right to expect that custodial sentences should be the rule rather than the exception because we have a problem and stiffer sentences are necessary to resolve it. However, that does not mean that custodial sentences should be mandatory. We should expect more from our judiciary and our sheriffs, who we are paying more and training better than ever before. They should reflect what is wanted not simply by MSPs, but by the people of Scotland. However, the older I get, the more I believe that we are well served by the judiciary—although perhaps that is just part of the aging process and a result of the fact that friends with whom I used to practise are now on the bench.
The final reason why I think that custodial sentences should not be mandatory is that the Lord Advocate has emphasised that discretion will be used. Most members will have been contacted by constituents who have been worried about wearing a sgian-dubh at weddings or carrying a Swiss army knife for occupational purposes. The police will use their common sense. However, we all know of instances when common sense goes out of the window. We cannot have here the United States of America's "three strikes and you're out" policy, which means that someone could go to prison for life for stealing a piece of pizza. We cannot have the situation where somebody who should have known better but, for whatever reason—an act of stupidity, perhaps—ends up in court and a mandatory sentence is imposed by the sheriff.
We should have a greater trust in our judiciary. We should accept that the Lord Advocate has expressed the desire to tackle this through the forces and systems that we have available and that there is a general consensus in Scottish society on the issue. Those words and that consensus should mean that the end result of carrying a knife will be that the person will face a custodial sentence as the rule rather than the exception. It is unnecessary to state that in the bill, as Charlie Gordon proposes.
I listened carefully to what Charlie Gordon said and I agree entirely with 95 per cent of it. However, as David Davidson said, the Conservatives cannot support the principle of mandatory sentencing. Speaking personally, I find it surprising when someone with a previous and analogous conviction is not sentenced to detention. Indeed, in many instances, a custodial sentence is appropriate even for the first offence, although that is a matter for the presiding sheriff.
Of course, in Glasgow, the history of knife crime is one of a move towards more realistic sentencing. At one stage, all such cases were sent to the district court. The consequence of that was that everybody pled not guilty and it often took some nine months for the case to come to trial. What happens now—and I am greatly reassured by a number of the Lord Advocate's recent comments—is that these cases are fast tracked. The person should be kept in custody, appear in the custody court and a trial diet should be set for the earliest possible date.
Young people have short memories. The vast majority of those who offend in this type of case are young. There is therefore no point in proceeding with a prosecution nine months after the alleged incident. It should also be remembered that these trials should be kept fairly simple: in most cases, we should be talking about two Crown witnesses and one defence witness. There is no reason why such cases cannot be fast tracked.
As Kenny MacAskill rightly said, our sheriffs show a greater degree of realism nowadays. Certainly, they are very well paid and their training has improved. However, there is still a mindset among sheriffs, some of whom find it difficult to relate to those who come before them. Sheriffs from the douce terraces of the new town or Pollokshields can find it hard to imagine what Renfield Street or Union Street in Glasgow are like at one o'clock on a Saturday or Sunday morning. It would be educative for some of their lordships and ladyships to go out on those nights—not necessarily clubbing or discoing—and to walk the streets and see what happens. That might concentrate minds quite wonderfully. As Charlie Gordon says, there is a very serious problem out there.
Even if the legislation that the Executive has in the pipeline goes through—we will certainly support much of it—the impact of any sentencing will be mitigated considerably by the facts of completely unearned early release and the one third discount in respect of pleas. By my arithmetic, a sentence of 12 months is cut immediately to eight months in respect of the plea and is then subject to 50 per cent remission, which takes it down to four months. It may well be that, because the Minister for Justice's view is that part of a sentence should be served in the community, the sentence will be reduced to two months. That is hardly a deterrent.
However, I am greatly encouraged by what the Lord Advocate has said recently. We should wait and see what the effect of that will be. Charlie Gordon's amendment 159, well intentioned as it undoubtedly is, should not obtain the support of the Parliament today.
I heard earlier in the debate—it was said sotto voce—a scary suggestion of how to deal with these offenders. It appears that Karen Gillon is volunteering to gie them a cuddle.
I was suggesting that that was in line with Mr Fox's solution.
I think that Ms Gillon's solution might be extremely appropriate.
Times change—Charlie Gordon referred to the culture of the razor in Glasgow in the 1950s. I used to go out every Friday night with a 9in blade, but I was a boy scout and that was the night when I went to the boy scouts with my dagger on my belt for gutting a rabbit or cutting a piece of wood from a tree as a walking stick. However, we must abjure such behaviour in today's culture.
Many people still legitimately carry blades of one sort or another. People who work in a factory gutting fish have the sharpest blades—they wear chain-mail gloves to ensure that they do not cut off more than a couple of fingers in a shift. Fish workers personally own their blades and might pop into the pub on the way home while carrying a blade. A mandatory sentence might inadvertently catch such people.
Does Stewart Stevenson not realise that a safeguard exists for people who can show that carrying such blades is permissible? It is important to retain that.
Phil Gallie is absolutely correct; I accept his point, which I was going to make. That applies equally to agricultural workers who carry a heuk or a scythe home and to butchers who carry their knives. When fishermen come off a boat, the first port of call is often the pub on the way home. Inadvertently, people may compound offences.
I am saying simply that we have a complex set of interlocking things that happen in society. For example, the problem with guns is not legally held guns but illegally held guns. That shows the limitations of legislation if we do not tackle the underlying cultural issues that cause young men—by and large, it is young men who are involved—to carry knives inappropriately. Other members have effectively made the point that if we do not tackle the culture, legislation will be of limited value.
I support what is in the bill, which moves the situation on. However well intentioned Charlie Gordon is and however well informed he is by experience in Glasgow, amendment 159 would add nothing to help the peace. As for what Colin Fox proposes, we can do it already.
I have no doubt that the amendment in the name of Charlie Gordon has provoked a stimulating and thoughtful debate. If the Parliament does not support his contention, I hope that the debate will continue, because the problem of knife carrying is endemic in Scotland.
Most members have considered the seriousness of the issue in the speeches, but there is aye one, Presiding Officer. I refer to the astonishing and illiberal speech by Jeremy Purvis, which was big on rhetoric and small on reality. He is so convinced of his approach that he evidently must have brought amendments back to the chamber, but where are they? I do not see them. No evidence on Jeremy Purvis's proposal was given at stage 1. To be frank, several committee members think that his proposal was dreamed up on the back of an envelope. Stewart Maxwell is right: Jeremy Purvis's proposed amendments would mean that we considered rape to be a lesser crime. The issue is far too serious to play politics with.
I will not give way, because Mr Purvis would not take an intervention from me. There are courtesies in the chamber.
Perhaps the Liberals' Jeremy Purvis should join the real world and consider the real experience of the communities that some of us represent.
The debate has been useful. It has highlighted our concern about a significant problem in many parts of Scotland and more particularly in the west of Scotland. It is clear from the measures that are proposed in the bill and from the comments that the Lord Advocate made this week that we take knife crime seriously.
It would be remiss of us—indeed, we would be failing in our duties—if we did not respond to the type of situation that Charlie Gordon has described. Amendment 159 has enabled all parties to put on the record their detestation of knife crime and their determination to ensure that those who carry knives are effectively dealt with.
Kenny MacAskill and Charlie Gordon raised important issues. In Scotland, the concept of the judiciary's independence is important—David Davidson mentioned that—but we also want judges to know what we have said in the chamber in passing legislation so that, in making independent decisions, they are aware of the context in which it has been passed and can reflect on the seriousness with which we, on behalf of the public, have reached a considered view. That is why it is right that we give out clear messages in the bill and in other measures that we are taking.
Our participation in this week's knife amnesty should be seen as a public expression of our determination to do something about the problem. We are not pretending that the knife amnesty will be a solution by itself; we want people to have a debate and to think about and reflect on what is happening. We want them to know that the knife amnesty is a public expression and warning of what is to come. The police have made it clear that, once the knife amnesty ends, severe and significant measures will be taken against those who carry knives. We support the amnesty—there has not been, as Stewart Maxwell suggested, some kind of conversion—and we have committed resources for the purchase of 1,000 new hand-held metal detectors, which will be deployed throughout Scotland and particularly in areas with the worst problems.
We have proposed measures in the bill to double the maximum sentence for carrying a knife in public or in a school from two years to four years. The bill will also remove current restrictions on police powers of arrest for such offences. We want all such offenders to be taken directly into police custody. There are new stop-and-search measures to allow the police to tackle such problems more effectively. The Lord Advocate has announced tough new guidelines for prosecuting knife crimes under which repeat offenders will be held in custody and, where appropriate, prosecuted before a sheriff and a jury, which will enable sheriffs to impose a more severe punishment.
I have a question for the minister about situations in which individuals can be held in custody. I recall that there are issues relating to bail for more serious crimes, and that courts must consider and perhaps grant it, irrespective of the seriousness of the crime. How can we ensure that individuals who have been taken into custody because they have been carrying a knife are not given bail?
Whether bail is granted will remain a matter for the sheriff. We are currently considering wider bail and remand issues, which we expect to debate in the Parliament. This week, the Lord Advocate made it clear that he expects procurators fiscal to oppose the granting of bail in circumstances in which a person has been convicted previously of carrying a knife or has a record of serious violent offending. The Lord Advocate's commitment to ensuring that bail is restricted is clearly on the record but, ultimately, decisions will be for sheriffs.
On the theme of considering wider issues, will the minister confirm that the proposed sentencing bill will be an opportunity to reconsider the sentencing proposals? The amendments in my name were not agreed to at stage 2, but does he agree that a longer debate is needed? Bill Butler said that he welcomed my good intentions in lodging amendments and Jackie Baillie said that she acknowledged my intention to move the debate on.
Yes, the proposed sentencing bill will be an opportunity to reflect on the way in which sentencing in general is carried out. As I understand it, Jackie Baillie's concern was not so much about the proposals that Jeremy Purvis made as about the context in which he introduced them into the debate today. That is a matter between Jackie Baillie and Jeremy Purvis.
As Jackie Baillie outlined, the reason why the amendments in the name of Jeremy Purvis were rejected at stage 2 was not lack of determination on the part of Labour members of the committee—nor, indeed, on the part of SNP members or Conservative members. The committee clearly took the view—which is shared by the Parliament today—that something significant had to be done to tackle knife crime. I understand that those amendments were rejected because the committee did not consider their content and what they proposed to be relevant, effective or the best way forward. The issue was, therefore, one of principles rather than some members trying to be seen to be tougher than others. I have no doubt that we will return to that debate.
Amendment 159 has triggered a useful discussion and Charlie Gordon has reflected an anger that is felt by many members. Frank McAveety, for example, has highlighted the problems in Glasgow on a number of occasions. I understand the anger not just of the politicians but of the families whose lives have been turned upside down because a son or someone else in the family has been a victim. I understand the anxiety of those who fear for the safety of their sons or grandsons when they go out in our towns and cities at weekends, and it is right that we should do something about it in the bill.
Many good arguments have been advanced as to why the case has not yet been made for mandatory sentencing, given its implications and consequences. However, Charlie Gordon made an important point. When we pass legislation, we should not simply leave it and regard it as the finished product; we should continue to reflect on whether the legislation is having the desired effect. Is it making a difference on the streets of our towns and cities? If the bill, the measures from the Lord Advocate and the signal that is going out to the judiciary are not having the effect that we hope that they will have—if people are still foolishly and wantonly carrying knives—then Charlie Gordon is right: the Parliament must consider what else we need to do, even though we might, at the moment, consider further measures unpalatable. Although we are determined to return to the bill in that way if necessary, I hope that we do not have to do that. I hope that the measures that we agree today will have the effect that we think that they should have.
I will not dwell on amendment 160, in the name of Colin Fox. The same amendment was dealt with at considerable length by the committee at stage 2. The committee rejected it then and I see no reason for Parliament to return to it now. I hope that Colin Fox will not move amendment 160, but if he does, I hope that Parliament will oppose it.
It has been a good debate on an important moral issue. In my opening remarks, I said that this is a complex phenomenon that requires a multi-agency response. Colin Fox caricatured the intention behind my amendment. Colin Fox's position appears to be that the people who carry knives are mainly poor youngsters who need counselling. Well, back in the 1960s, the gang members who chased me along Sauchiehall Street were quite prosperous apprentices—as I was, back then—in a period of relatively full employment. As I said earlier, they were hell-bent on recreational violence. Plenty of middle-class schoolboys in Scotland today are walking around with blades in their pockets, so let us not be too simplistic.
Many members have talked about the culture of knife carrying among young men. That culture exists, but there is evidence that some girls are also carrying knives. I know that because I represent the city centre of Glasgow. We should not overlook the fact that some girls are also carrying knives.
Pauline McNeill is right about that and it has been going on for a long time. The standard operational method in the Glasgow dance halls of the 1960s was that, because the boys were searched by the bouncers, their girlfriends carried the weapons in their handbags.
Colin Fox mentions counselling. It must be part of a multi-agency response, but I say to him that if I encounter a stabbing victim who is lying on the pavement, my first thought is not that the person who did it needs my help.
I am pleased by the minister's response and the Lord Advocate's new guidelines, which were issued after I lodged amendment 159. I am also pleased that, yesterday in the House of Commons, the Prime Minister, Tony Blair, left the door open for the type of approach that I advocate to be introduced south of the border if that is what it takes to tackle a similar problem there.
After this excellent debate, the Parliament must close ranks and send out a strong message. There are strong new provisions in the bill that, along with the amnesty, the metal detectors that are being supplied to the police and the Lord Advocate's guidelines, will enable us to send the blade-and-booze boys a clear, strong message that they are drinking in the last-chance saloon.
Kenny MacAskill said that we should perhaps expect more from the judiciary. Senior colleagues have impressed on me, as a rookie parliamentarian, that I must not be too hard on the judiciary and that the legislators must never completely fetter the judiciary's discretion. That is probably true, although I note that in a completely different context—a civil context—a senior member of the judiciary seeks to lecture us through the media on how we handle other matters.
Knife carrying is too important an issue for us to nod the bill through and think that the problem will go away. We must monitor and review the effectiveness of what we do. Sheriffs too can sometimes drink in last-chance saloons.
Amendment 159, by agreement, withdrawn.
Amendment 160 moved—[Colin Fox].
The question is, that amendment 160 be agreed to. Are we agreed?
No.
There will be a division. As this is the first division, there will be a five-minute suspension.
Meeting suspended.
On resuming—
We will now proceed with the division.
For
Byrne, Ms Rosemary (South of Scotland) (SSP)
Fox, Colin (Lothians) (SSP)
Martin, Campbell (West of Scotland) (Ind)
Against
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
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)
Davidson, Mr David (North East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Finnie, Ross (West of Scotland) (LD)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
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)
Johnstone, Alex (North East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McFee, Mr Bruce (West of Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
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 (South of Scotland) (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)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Petrie, Dave (Highlands and Islands) (Con)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Swinburne, John (Central Scotland) (SSCUP)
Swinney, Mr John (North Tayside) (SNP)
Tosh, Murray (West of Scotland) (Con)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Wallace, Mr Jim (Orkney) (LD)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 3, Against 108, Abstentions 0.
Amendment 160 disagreed to.
Section 72A—Powers to take data and samples from persons subject to notification requirements
Consideration of group 12 amendments will be split between this morning and this afternoon. Group 12 is on taking DNA and other samples from certain persons. Amendment 208, in the name of Bill Butler, is grouped with amendments 196 to 198, 161, 199, 162, 200 to 207 and 14.
Amendment 208 and the others in the group relate directly to an issue that I raised with the minister at stage 1 and about which I lodged amendments at stage 2. I asked the minister during evidence taking whether the police should be given powers to take DNA samples from persons who are subject to a risk of sexual harm order under section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005. Ministers had already agreed that amendments should be made at stage 2 to give the police powers to take and retain a DNA sample from a person who is subject to the notification requirements of the sex offenders register if such a sample does not exist. My concern was and remains that a loophole will exist unless appropriate amendments are made.
During stage 2, I lodged amendments that I hoped would require those who are subject to risk of sexual harm orders to provide DNA samples to the police. After hearing the minister's comments, I did not move the amendments on the sound bases of their being technically deficient and the Executive being willing to look further at the proposals if I lodged technically resilient amendments at stage 3.
The class of persons from whom it is proposed that samples be taken in this case differs from registered sex offenders. A person who is subject to an RSHO will not necessarily have committed an offence, although in many cases he will have. However, the purpose of an RSHO is to protect any child from harm and the order would be obtained only if it appeared that the person had engaged in sexually inappropriate conduct with, or in the presence of, a child. In such circumstances, there is merit in the proposals in amendment 208 and the other group 12 amendments in my name. The purpose of taking such samples is to prevent and detect serious crime, namely the commission of sexual harm against children. The taking of DNA samples and their retention during the period of the order fits in with the overall policy and intention behind the RSHO scheme and is therefore neither excessive nor disproportionate in its intended effect. I hope that members will agree that my amendments are proportionate and necessary. I ask for Parliament's support and hope that the Executive will also agree to my amendments.
I move amendment 208.
There are a number of significant amendments in the group, but I will deal first with amendment 208. I fully support what Bill Butler said and what he seeks to do. He has identified a loophole that we believe it is important to close. The additional powers would allow the police to take and retain DNA and fingerprints from people in Scotland who are considered by the courts to pose a danger to children. The provisions would also give the police the power to take data from individuals who are subject to risk of sexual harm orders in England, Wales and Northern Ireland and who have moved to Scotland.
I emphasise that the taking and retention of DNA and fingerprints raises European convention on human rights issues about the right to privacy, particularly because a person does not have to commit an offence to be made subject to an RSHO. I believe that the measures can be justified as being necessary for crime prevention and the protection of others, especially children, if a court has determined that an individual poses a risk to society.
Bill Butler's amendments also contain a number of safeguards that make them proportionate. For example, the police would be unable to use reasonable force to take prints and samples and any data that were taken would have to be destroyed when a person was no longer subject to an RSHO. The provisions would help to protect the public and they can be justified in ECHR terms, so we give them our whole-hearted support.
I turn now to Paul Martin's amendments. We support his amendment 207, which represents a sensible balance between those who believe that the police should retain all the DNA that they take and those who argue that police powers to keep DNA should be limited. The focus on violent and sexual offences is welcome, given the seriousness of those offences. It would only be helpful for the police to hold the DNA of those who were proceeded against for serious offences but who were not convicted. That would involve cases in which a person had been arrested and the procurator fiscal thought that there was sufficient reason for a charge to be laid, although a conviction was not obtained, for whatever reason.
Will the minister give way?
I will give way in a second.
We can imagine circumstances in which a charge is made and taken to court but a conviction is not obtained. Sometimes a case collapses and sometimes witnesses are intimidated and a case is unable to proceed. It might be useful to retain DNA in cases in which the police believe that an imprisonable offence was committed but no conviction has been obtained.
I thank the minister for giving way. I accept his comments about Bill Butler's amendments. The important aspect is that the court determines that a person presents a risk to the public, as the minister stated.
However, in the case of amendment 207, which the minister supports, no such determination would be made and the person whose DNA would be retained would have no legal recourse to object to its being retained. Is that situation likely to be compatible with ECHR and to fulfil the requirements that the minister said Bill Butler's amendments had to meet, and with which I agree?
Yes. Having considered the matter, we believe that amendment 207 is ECHR compliant. Indeed, the position in England and Wales, which is more extensive than what is proposed for Scotland, was deemed by the House of Lords to be ECHR compliant. I know that that is being challenged further in the European courts, so it will be a matter for them to determine. However, as the law in this country stands, what is proposed is ECHR compliant.
We believe that the more limited, more focused and more proportionate proposal from Paul Martin is worthy of support. The police may believe a person is a risk and arrest them because of a suspicion, and the procurator fiscal may believe that there is sufficient reason to proceed with the case. If such a case were to collapse for whatever reason or the person was not convicted, there would remain good reasons for the police wanting to retain any DNA.
Paul Martin has added further safeguards in that samples would be retained only for three years. If the police wanted to retain them beyond that time, they would have to go to a sheriff, who would be able to make a determination on that. We believe that those safeguards are important. Indeed, even those such as GeneWatch UK, which is opposed to proposals in England and Wales for the retention of samples, say that the Scottish Parliament is taking a much more thoughtful approach and that amendment 207 acknowledges that there may be carefully justified exceptions in respect of which the police could benefit from keeping DNA profiles on the database for longer. GeneWatch said to the Justice 2 Committee that there could be circumstances in which the DNA of violent and sexual offenders might well be retained.
On the answer that the minister gave to Stewart Stevenson, if the European Court of Human Rights overturns the decision of the House of Lords in the case to which the minister referred, will he undertake to have the Executive look carefully at that judgment and to consider afresh some of the issues that we are debating today?
We absolutely will—that goes without saying. Not only would we have to reflect on the decision but we would need to consider carefully whether the law in Scotland was sufficiently different to justify our continuing with our approach.
For information, will the minister describe how a risk of sexual harm order is obtained in England? It is a tricky point.
That is a different issue. I am talking about amendment 207, which was lodged by Paul Martin; I have dealt with risk of sexual harm orders and I cannot go into detail about how RSHOs are obtained in England. As I said, if an RSHO in Scotland was, because of concern about their potential to commit a sexual offence, applicable to a person who had come to Scotland, DNA could be taken from that person. If an RSHO order had been imposed in England on a person who subsequently came to Scotland, we would want to take DNA from that person.
Amendment 207 is proportionate and focused and represents a helpful contribution to a serious matter. We did not accept Paul Martin's proposal at stage 2, which was to retain the DNA of all people who are arrested for imprisonable offences in order to bring the approach in Scotland into line with that in England and Wales, but amendment 207 represents a more appropriate approach.
We will oppose Paul Martin's amendments 204 and 205 and hope that he will not press them, although we understand what he was driving at in lodging them. He has raised a serious issue about which many people are concerned. Sometimes people who are under 16 and who have committed violent or sexual offences are dealt with by the children's hearings system rather than by the courts, for whatever reason. The amendments highlight the problem that arises because the police cannot retain DNA samples from young people who have been dealt with by the children's hearings system and are not charged with or convicted of a violent or sexual offence. Amendments 204 and 205 would create significant problems for the children's hearings system. However, in lodging the amendments Paul Martin has highlighted an issue that is worthy of serious consideration. I am sure that other members will express the same concerns and I will report those concerns to Peter Peacock, the Minister for Education and Young People, because we need to reflect on the matter when we consider how the children's hearings system works.
Members on the Scottish National Party benches are somewhat baffled. We would be happy to support amendments 204 and 205 because they would provide—in slightly different ways—the safeguard of a sheriff having to be satisfied with the approach. Therefore the interest of the person whose DNA was to be retained would be represented in a decision about whether to retain samples. However, amendment 207, which the minister supports, provides for no representation on behalf of the person whose DNA would be retained. Will the minister expand on that?
I have dealt with amendment 207. We are not opposed to the principle behind amendments 204 and 205, but the amendments would cause practical difficulties for the children's hearings system. As I said, I will take the matter back to Peter Peacock. When we consider the children's hearings system we must explore how we deal with young people who are involved in violent or sexual offending.
I give a commitment to Paul Martin and Parliament that we will consider the matter. However, amendments 204 and 205 would not have the desired effect and, more important, could cause more problems. The youth justice improvement group, which deals with the risk management of young violent and sex offenders, is doing considerable work on the issue. Its proposals, which are to be published in July, will impact considerably on that group of young people. I want to wait and see what the suggestions are. We will return to the issue.
Members are a little confused. Will the minister comment on the principle of storing the DNA of non-convicted people, by which I mean those who are not found guilty? The minister seems to be a little vague on that and I would like a specific answer. Does he believe that only people who have been prosecuted successfully should have their DNA stored?
I thought that I was clear about that but, for the avoidance of doubt, I repeat that we support amendment 207. At present, DNA can be taken from people who are arrested for an imprisonable offence, but it is destroyed if they are not convicted. Under Paul Martin's proposal, which we support, if a person is arrested and then charged—which means that the police and the procurator fiscal will have considered the matter—but is then found not guilty, or the case collapses for whatever reason, their DNA will be retained for up to three years. It will be possible to retain the DNA beyond that period, but only on application to a sheriff. Members should be under no illusion: we support amendment 207, which is clear and proportionate and will be beneficial.
I turn to the amendments in the group that are in my name. Under section 72A, the police will be able to take DNA and fingerprints from a registered sex offender who is arrested or detained for an offence that relates to the sex offenders register, provided that the police do not already hold those data. Amendment 161 will enable the police to take DNA and fingerprints from a registered sex offender who is arrested or detained under suspicion of committing any offence. Amendment 162 will make it clear that, if the police decide to exercise their powers under section 72A when a registered sex offender is arrested or detained in custody for any offence, the police must explain that fact to the offender.
A section in the Criminal Justice (Scotland) Act 2003 accidentally removed the requirement on the police to destroy DNA samples that are taken by mouth swab if the person is not convicted. Amendment 14 will correct that mistake. I make it clear that, despite that oversight, the police have continued to destroy DNA samples that are taken by mouth swab from persons who are not convicted. If Parliament agrees to amendment 206, which is in the name of Paul Martin, I will not press amendment 14 because the police would therefore be able to retain all DNA that they take from suspects. However, if amendment 206 is not agreed to, I will press amendment 14 in order to correct the oversight from 2003.
I will speak to my amendments in the order that they are set out in group 12. Amendments 204 and 205 would give police authorities a right to retain the DNA of juveniles who are dealt with through the children's hearings system. Those retention powers would be in line with my proposals in respect of adults. It is important to acknowledge that some of the offences that could be involved are serious and include rape, murder, child abduction, indecent assault and other grotesque crimes that are reported in our communities. I believe that tackling and detecting those crimes requires a proactive and forensic approach.
As I said, amendments 204 and 205 are in line with my proposals in respect of adults. However, I acknowledge the challenges that the minister set out and the complexities of integrating the proposals with the children's hearings system. I understand the technicalities that would be involved in delivering amendments 204 and 205.
I ask the minister to reflect on the concerns of many communities throughout Scotland that we should detect at an early stage juveniles who are a serious threat to society, not only for the sake of their communities but for those individuals. An opportunity to do so would prevent the difficulties that are experienced in communities as a result of the behaviour of those juveniles. The retention of DNA would enable us to detect such individuals.
At stage 2, I lodged an amendment that was similar to amendment 206 and which would have given police authorities the power to retain the DNA of all those who are arrested or detained on suspicion of an arrestable offence. That would bring us into line with current legislation in England and Wales. As we have heard on many occasions, there are issues concerning the effectiveness of the legislation. Despite the challenges to the figures that have been set out by the Home Office, one offence being prevented is not one offence too many. If it is disproportionate, that is a chance worth taking.
Is Paul Martin seriously suggesting that the DNA samples of people who have been found by their peers in a jury trial to be completely innocent of any charge should be held indefinitely by the police?
I will come to the issue that Mike Rumbles fairly raises.
The issue of civil liberties has been tested by the law lords. I agree with Lord Steyn who, in a House of Lords ruling, made it clear that retention of samples does not breach the right to privacy that is enshrined in the European convention on human rights. The key point that Lord Steyn made is that even if it did, it would
"not affect the appellants unless they are implicated in a future crime, by a DNA sample found at the scene."
For too long, Parliament has tried to balance civil liberties and the rights of victims. I remind members that victims are also innocent members of society. I make no apology for presenting the case of victims or potential victims.
In view of what happened to my stage 2 amendment, I fear that amendment 206 will not get the agreement of Parliament. After reflecting on the concerns that were raised constructively by members at stage 2, I have lodged another amendment—amendment 207—which focuses on those on whom criminal proceedings have been instituted for a relevant violent or sexual offence. Those alleged offences include rape, murder, child abduction and lewd and libidinous behaviour. I hope that that clarifies the question that was raised by Bill Aitken.
I have considered the concerns that have been expressed in respect of people who have not been charged with a crime but have had their DNA retained. Again, amendment 207 will apply only to those on whom criminal proceedings have been instituted. Concerns were also expressed about the period of retention of DNA. I have chosen to allow a period of three years, with the proviso that the chief constable could apply for an extension of up to two years.
On the point about the order to extend the time period and to delay the destruction date by up to two years, I notice that the decision to grant an order can be appealed but there is nothing in the amendment to ensure that such an appeal would be notified to the person whose sample was in question. Is that covered by some other aspect of the bill? If not, surely that person would have no practical ability to appeal such a decision.
There will have to be some clarification of the point that Patrick Harvie raises about notification of the individual. The bill is ECHR compliant and I understand that it contains provisions that will allow that to happen.
I am sorry; I have come to this issue quite late in the proceedings. There are some problems with amendment 207's proposed new section 18A(5) of the Criminal Procedure (Scotland) Act 1995. On the basis of subsection (5), the chief constable would make the application for retention of the DNA and the sheriff would have to make a determination on that application. Can Paul Martin tell me how he envisages that process working? Would the person who is subject to the application have the opportunity of making a case before the sheriff? Would evidence be taken on oath?
We have to be careful when entering into the area of police intelligence and the information that can legitimately be shared. My understanding is that there will be an opportunity for such an appeal to take place. That will have to be clarified, but I have laid out the framework that would allow that process to take place.
Perhaps amendment 207 does not go as far towards protecting the rights of victims as I want, but I believe that it would mean progress in the right direction. I do not believe that amendment 207 would result in an erosion of civil liberties; rather, it would ensure that everyone in society would have a right to civil liberties, including victims.
A considerable number of members wish to speak in the debate and I have the choice of giving one member three minutes to speak or suspending for three minutes and continuing in the afternoon. It would be unfair to give someone three minutes now when everyone who speaks this afternoon might get five. However, if any member really wants to have those three minutes, they can have them; they are up for grabs. If not, I will suspend the meeting.
Meeting suspended.
On resuming—