Chamber and committees

I want to address a number of amendments in this group, including my own amendments to reform the victim notification scheme, also known as the VNS, as well as those that the committee has just heard about. I will take some time to explain what our amendments will achieve.

As I have indicated to the committee in writing, we want to combine the two criminal justice VNS elements: the current scheme for victims of offenders who have been sentenced to 18 months or more, and the victim information scheme, which is more limited and is currently available to victims of offenders sentenced to fewer than 18 months’ imprisonment. We want to provide all victims with the same entitlements to information, no matter the offender’s sentence length, and to expand the rights of all victims to be able to make representations when the offender is released on licence. That is what amendment 172 does.

Amendment 173 provides a legal gateway for the COPFS to directly provide victims’ personal data to Scottish ministers for it to be lawfully processed; that will enable their details to be automatically referred to the victim contact team, who can then discuss with victims their options in relation to registering with the VNS. That is necessary to underpin the establishment of the victim contact team, which is a key feature of the reformed VNS.

On the VNS amendments that have been lodged in the context of offenders subject to mental health orders and directions, amendment 174 amends section 2(3)(b) of the Victims and Witnesses (Scotland) Act 2014 to include mentally disordered offenders—those subject to a compulsion order with a restriction order, known as a CORO; a transfer for treatment direction; or a hospital direction—among Scottish ministers’ functions for the purposes of the standards of service that must be published.

Such a move will allow for the standards to be updated, following the VNS’s introduction for mentally disordered offenders in the Mental Health (Scotland) Act 2015. The amendment means that those standards of service must be met in relation to victims of mentally disordered offenders and when making and resolving complaints, which will help ensure consistency of service and oversight across the whole VNS.

Amendments 175 to 178 amend the Criminal Justice (Scotland) Act 2003, which I will refer to as the 2003 act from now on. Amendment 175 amends section 16A of that act to enable registered victims to continue to receive information through the CORO VNS when an offender on a CORO has been transferred out of Scotland, been made subject to corresponding measures and subsequently been transferred back to Scotland. It resolves a known difficulty, arising from the fact that, on return to Scotland, the offender is not subject to an order made in court proceedings in respect of the offence. The amendment also amends section 18B of the 2003 act to allow Scottish ministers to amend section 16A of the 2003 act by order, to include other offenders, such as those who transfer from other jurisdictions into Scotland for the first time and to other mentally disordered offenders in the future.

Amendment 176 relates to victims of offenders subject to a CORO, a hospital direction or a transfer of treatment direction. It amends section 17D of the 2003 act so that, where a victim has been afforded the opportunity to make representations under section 17B of that act, they are told that a decision has been taken and what the actual decision is.

The amendment inserts new subsections (5) and (6) into section 17D of the 2003 act to allow for victims to be informed of appeals against a decision by the Mental Health Tribunal for Scotland to make no order under section 193 of the Mental Health (Care and Treatment) Scotland Act 2003. When such a decision cannot competently be appealed against and is therefore final, a decision to make no order effectively means that the CORO has not been varied or revoked by the tribunal.

Amendment 177 relates to victims of offenders subject to a CORO. It inserts new subsections (3A) and (3B) into section 18A of the 2003 act to create a power to vary what is a “relevant condition” to a victim for the purposes of the conditional discharge of a CORO patient. Currently, victims are required to specify names and places that they are interested in, and that information determines the conditions relevant to them.

However, some victims do not provide that information and therefore miss out on information that they might receive under the CORO VNS. In other cases, when there is more than one registered victim, victims might specify different people and places and therefore receive different information on conditions, which can be confusing. This amendment will allow for consultation with victims on what conditions they consider to be relevant to them and the process of delivering that information to them, in order to inform changes to those aspects of the CORO VNS.

Amendment 178 also relates to victims of offenders subject to a CORO, a hospital direction or a transfer for treatment direction. It seeks to amend section 18A of the 2003 act by amending subsection (2) and inserting new subsections (2A) and (2B), with the aim of ensuring that victims receive information about a suspension of detention—that is, the first occasion that an offender is granted unescorted suspension of detention, allowing the offender to leave hospital grounds unescorted—that is relevant to them.

I will now turn to the rest of the amendments—

Yes.

Turning to the other amendments in the group, I am sympathetic to their underlying aim of ensuring that victims are able to effectively exercise their right to access information and support services.

Katy Clark’s amendment 61 would, in effect, mean that all victims would automatically be registered for the VNS without their knowledge or consent, even if they did not know about the scheme, understand it or want to sign up to it. I am keen to try to avoid the terminology of “opt in” and “opt out”, if possible. My amendments seek to ensure that victims are able to make informed and supported choices and to fully exercise their entitlements to information at a time and a pace that suit them best, as individuals.

I know that amendment 61 is well intentioned, but, if my amendments are agreed to, it will fundamentally change the context in which the VNS operates in future by providing the same entitlements to all victims. If entitlements were expanded to victims in cases where the sentence was under 18 months, there would be, in many cases, only a short period in which there would be an opportunity to opt out for those who wished to do so. The victim might be presented with information that they did not want and had not asked for, without an opportunity to express their preference.

Instead, as I have set out, the existence of the victim contact team will allow for automatic referral to that team, which can discuss a victim’s rights and entitlements directly with them. That will help ensure an informed choice and agency for the victim.

In addition, amendment 61 would not allow for sufficient consideration of a child victim’s best interests or their views. There might also be significant data protection issues in relation to the sharing of data in order, in effect, to register an individual for a scheme in which sensitive and potentially distressing information could be communicated to them without their express consent. I know that the committee received a letter in relation to that yesterday.

I am clear that criminal justice agencies throughout the system must be as proactive as possible in ensuring that victims are aware of their rights and able to exercise them. I have set out how the victim contact team will enable that for the VNS, and wider work is being taken forward under the auspices of the victims task force, which will consider the matter across the whole system. However, it is important that, in doing that, we respect as far as possible the victim’s choices and their ability to express them and have them respected. I am concerned that amendment 61 does not adequately take that into account, so I urge the committee to oppose it.

Again, I understand the intentions behind Jamie Greene’s amendments. Amendment 237 would place a broader responsibility on Police Scotland to refer victims to support services unless the victim explicitly chose not to be referred. I can see benefits in ensuring that connections are made to all support organisations and that the offer of support that might follow remains subject to the victim’s choice.

However, before I can give the amendment my full support, I would like to engage with Police Scotland and victim support organisations on the matter and ensure that due diligence on data requirements is carried out, including by the Scottish Information Commissioner. I suggest to Jamie Greene is that, if I can carry out that work ahead of stage 3, we can discuss the issue further, with the aim of agreeing a suitable stage 3 amendment that would meet Mr Greene’s underlying policy aim.

I also make the same offer in relation to Mr Greene’s amendment 238, which would require the Parole Board for Scotland to refer victims to support services, unless the victim explicitly chose not to be referred. Again, the amendment is well intentioned, but I want to engage with the Parole Board for Scotland to understand the operational implications and the data requirement issues with that amendment. My offer to Jamie Greene is that I will do that work ahead of stage 3, and I am happy to meet and discuss it further with him.

Convener, I will jump to amendment 244 and again make an offer to Mr Greene to discuss further detail ahead of stage 3. I agree that certain areas with regard to the timing of the provision of information could be improved, and I am happy to work with Mr Greene on achieving that.

As for the final two amendments in the group, I do not support amendment 243 from Mr Greene, because it reflects existing processes and legislation and does not take into account the changes that we are seeking to introduce with the merging of the VNS and the victim impact statement and the underpinning for the victim contact team. I am happy to discuss the aims and intentions for the VNS and the contact team in more detail with Mr Greene.

I accept the principle behind amendment 245 of seeking to give victims more choice to make oral representations in the parole process. However, I understand that primary legislation is not required to make such a change, as relevant powers under section 17(13) of the 2003 act allow for that to be done by regulation. There might also be questions of proportionality and appropriate resourcing in applying that right to all parole cases, where the option is currently limited to life sentences. I would be happy to discuss the matter further with Mr Greene ahead of stage 3, and to consider how it is done in other jurisdictions.

I urge the committee to support the amendments in my name, and ask members to oppose the other amendments in the group, if they are moved. The committee should also note that I am happy to discuss any other details further with members.

I move amendment 172.

That is part of it. As I said in my opening remarks, there has been a delay in issuing the voluntary code of practice because of pressures on the team. We are looking at doing that within the next six months. The draft has gone to key stakeholders to try to simplify the process. That will be in addition to what will be online on the Scottish Government’s website.

Does anyone else have any views on how the voluntary code of practice will help?

I would like to give it some further thought, but we are always open to new suggestions as to how we can simplify the process. I am probably putting my colleagues on the spot, but I do not know whether they have any initial thoughts about the legal implications of Mr Ewing’s suggestion, or whether it is simply a case of our going away and thinking about it.

Legal aid is available for people who apply and are eligible for it. There should be no problem with anyone accessing justice if they would like to.

Yes, that is my understanding. Do my officials want to say anything other than that?

Yes, I think that it is. However, we do not have the exact number of how many dismissals there have been in the past 10 years; it has not been specifically on my radar in my ministerial role for the past two years per se. However, if there are ways in which we can improve the system, the Scottish Government is always willing to look at them.

I would like them to do it.

If I could, convener, I would like to start with a few opening remarks to provide a bit of clarity, as there is a bit of crossover between my portfolio and that of the Minister for Housing on the issue.

Thanks very much, everybody, for the opportunity to talk about the dismissal and the appointment of property factors, and to provide an update on the progress of the voluntary code of practice for the dismissal and the replacement of land-owning land maintenance companies.

My property law portfolio responsibility covers the dismissal and the appointment of property factors—sometimes referred to as switching—which includes the land-owning land maintenance companies. The Minister for Housing has portfolio responsibilities for the Property Factors (Scotland) Act 2011, which includes the register of properties factors and the code of conduct. My comments will focus specifically on my portfolio.

I know that the petitioner has called for legislation to cover the dismissal of property factors. Legislation is already in place that deals with that matter. If the title deeds of a property do not set out how the property factors are to be dismissed, provisions under the Title Conditions (Scotland) Act 2003 and the Tenements (Scotland) Act 2004 will apply.

As I have indicated in my previous responses to the committee, I consider that the existing remedies by which home owners might dismiss a factor are adequate and that a legislative change at this time is not necessary. I note that, in its response to the petition, Under One Roof said that the process to dismiss a property factor is not clear—I will come on to that—while the Property Managers Association Scotland considered that the current legislation on the matter is sufficient.

I recognise, however, that some home owners find the procedure to switch property factors complicated. A guidance note on manager burdens will be published shortly on the Scottish Government website, which will help home owners to navigate the various options with regard to establishing voting procedures.

I have spoken to my officials this morning and the website says that the guidance will be published shortly. I am told that the timescale is within the next few weeks, but there are a few technical issues with the graphics that are being added to the website.