Chamber and committees

I will speak about amendment 74 slightly later. First, I will speak about amendments 82 to 91. Those amendments seek to change the time limits in criminal courts, which were extended under the emergency Covid legislation, by creating shorter general blanket extensions in all criminal cases. Of course, under Scots law, it is always possible to go to court to make a case on cause shown as to why the Crown does not have sufficient time, and needs further time, to prepare a case for trial. Therefore, cases would not time out as a result of any of my amendments being agreed to.

In today’s debate, we have heard a considerable amount about human rights and the European convention on human rights. There can be no doubt that the extensions that were granted during the Covid pandemic, and the increasingly extensive period in which people are held in prison without appearing in court, have real human rights ramifications, and that they could, indeed, easily be challenged under human rights legislation.

Scotland’s criminal law has a proud history of protections, but the legislation that has been enacted during the pandemic has had the effect of increasing the number of people in prisons. That is on top of significant increases in prison numbers over the past two decades. Scotland has the highest number of people in prison in Europe, and we have the highest number of people on remand. During the pandemic, the proportion of the prison population on remand has increased from 18.7 per cent to something in the region of 30 per cent, now.

The whole criminal justice system works towards the time limits that are set out in legislation. My submission is that the effect of those time limits—because the people who work in the system work to those limits—will put us in a situation in which individuals are in prison who would not be there if they had appeared before a court. The courts look at individual circumstances in each case and grant bail when they believe it to be appropriate.

Practitioners in the legal profession say that the time limits in the bill are not necessary. Indeed, the Law Society of Scotland is asking that we go back to pre-Covid time limits. We know from research that was undertaken before the pandemic that many prisoners who appear from remand do not receive a prison sentence when they are sentenced, or receive a shorter prison sentence than the period that they have already served, or are found not guilty at that point.

Amendment 78 would require the Scottish Government to provide Parliament with six-monthly reports on the operation of virtual courts.

We know that, in reality, very few fully virtual criminal cases have taken place during the pandemic, although some aspects of cases have been virtual. For example, juries have attended remotely in cinemas.

It has taken some time for the Criminal Justice Committee to get information on the extent of virtual hearings. It is clear that many in the legal profession are strongly opposed to some aspects of virtual courts, particularly those relating to witnesses giving evidence. The cabinet secretary therefore agreed that no virtual cases would proceed without the agreement of all parties. It is therefore unclear how quickly virtual courts will be rolled out across the country. For that reason alone, it is necessary for Parliament to receive regular reports to enable effective scrutiny.

When courts do take place virtually, the Parliament needs to know what impact that has on the balance of justice. Many people are campaigning for virtual courts. We already allow many vulnerable witnesses to give evidence remotely, and many victims would find it less traumatic to give evidence virtually. There is a strong case for taking steps along that path.

It has always been the presumption that virtual hearings might lead to more convictions. However, that is not necessarily what the evidence suggests. Fully virtual courts would mean that the accused and other witnesses would give evidence remotely. During the pandemic, a pilot of fully virtual court hearings, predominantly involving domestic abuse cases, was carried out in the north-east. Albeit that the sample size was small, there was an unusually high number of acquittals, with the accused being found not guilty. That issue was raised at stage 2 and the cabinet secretary agreed that more evidence would be needed to build up a picture of the impact of virtual courts before any decisions are made about permanent arrangements.

I think that there is a strong case for virtual courts, particularly for victims of offences such as domestic abuse and sexual violence, who may find attending court traumatising. However, if it is the case that people are more likely to be acquitted in a virtual hearing, I think that we have to look very carefully at whether the accused person should also give evidence in that way. As the north-east pilot shows, we cannot presume the outcome of cases. I believe that Parliament must be clear about whether virtual hearings are actually taking place and should also receive regular reports on the implications of such hearings as well as the extent to which evidence is given virtually and other aspects of cases are dealt with virtually.

For that reason, I move amendment 78.

More information needs to be provided to Parliament and to the relevant committee on the operation of criminal courts. Significant changes are being proposed to the criminal justice system and, indeed, to our fundamental right to a fair trial. We need to have the evidence base to ensure that any permanent changes are the right changes, because a very different approach might need to be taken in cases that involve evidence being given to case management aspects. For those reasons, I will press amendment 78.

I am grateful to the minister for her comments. It is my intention to press amendment 5 and to move amendment 34 but not to move amendment 33. I outlined the differences between the amendments and the nature of amendment 5, which would change the process to an affirmative procedure, and of amendment 34, which lays out a more detailed procedure that would give the committee time to look at the matter in detail. I wish to press amendment 5.

The two sets of amendments in group 4 would enhance the parliamentary scrutiny that would be required for any secondary legislation, particularly the licensing scheme.

Amendment 5 would change the process so that the regulation-making powers in part 2 of the bill that are subject to negative procedure would instead be subject to affirmative procedure. Amendment 34 goes further and sets out that the Government would have to lay draft regulations that would be brought before the Scottish Parliament via a pre-laying procedure. That would require the Government to lay a draft of the regulations before Parliament and that the Scottish Government be required to seek the views of the Criminal Justice Committee on the terms before finalising the regulations. It would also require the committee to have the opportunity to play a meaningful role in undertaking effective scrutiny of those regulations, should it wish to do so.

As has been said, the committee raised significant concerns about the bill and the licensing scheme. The reason for the amendments in this group is simply to enhance the parliamentary scrutiny that would be required, given the complexities of the licensing scheme, which I have outlined, and the potential risks, given the way in which such schemes have operated in other countries, particularly Northern Ireland and Italy, where there are similar schemes.

It is imperative that there are ample opportunities not just to consult stakeholders but to ensure that there is sufficient debate and scrutiny by members of the Parliament. At stage 2, the minister suggested that affirmative procedure would not be a good use of parliamentary time. I disagree with that. These are issues that require proper scrutiny so that the legislation, particularly the licensing scheme, functions well, particularly given the risks of a black market that were raised with the committee. Those risks need to be addressed and have been a feature in other countries.

As I said, amendment 34 goes further than the other amendments in the group by requiring the superaffirmative procedure, which requires the committee’s involvement.

The bill is complex. There is a lack of detail in relation to the licensing scheme, and it could have been much more simple. For that reason, I believe that it is appropriate that there should be effective scrutiny should further regulations be proposed.

I move amendment 5.

To ask the Scottish Government what discussions it has had with the Convention of Scottish Local Authorities and Unison following the balloting of thousands of the trade union’s members working in schools and nurseries over pay. (S6O-01268)

Amendment 2 and all the other amendments in the group would have the effect of removing the licensing scheme that the bill will create. The scheme will be a Scottish Government, Scotland-wide, centrally run scheme, and we understand that it will have a fee of between £20 and £50 attached to cover the administration costs.

I have lodged amendment 2 because of the risk that an unintended consequence of those provisions would be to create a black market in fireworks in Scotland. The bill provides little detail on what the licensing scheme will look like. We do not have a principled objection to the creation of a licensing scheme. However, given the concerns that have been raised by and with the Criminal Justice Committee, we do not believe that it is appropriate that the matter should be dealt with through delegated legislation. Rather, it should require the Government to come forward with primary legislation on a licensing scheme to enable a proper scrutiny process.

I agree with the member that we have a serious problem that needs to be addressed, and we will be looking at the amendments during the afternoon’s proceedings. It is quite clear that we need to tackle that problem. The issue that I am bringing to the chamber’s attention is that the licensing scheme is not the method for doing that, nor is it the way to tackle the problem of antisocial behaviour.

The bill does not ban the use of fireworks. It allows for professional organisations to have firework displays anywhere in Scotland, all year round. Those professional organisations do not have to apply for a licence. Local authorities will not oversee the ability of professional organisations to have public displays. I will be speaking to an amendment later that seeks to give councils the power to ban all fireworks in certain areas, including those that will be lit by professional organisations. However, the bill restricts the ability of individuals to buy or use fireworks in Scotland for much of the year, so that it will be a criminal offence to buy and use fireworks during specific periods of time—I am not suggesting that that should change.

Under the bill, it will be possible to buy fireworks on only 37 days of the year, which will include the firework season, bonfire night, new year, Chinese new year and Diwali. It will be possible for individuals to use fireworks legally on 57 days around the same period. It is likely that law-abiding citizens will fall foul of those provisions, and that they will use fireworks on the wrong day. The bill states that the individual needs to buy a licence to use or to buy fireworks. There is no doubt that, if the bill as drafted becomes legislation, law-abiding citizens will take steps to acquire a licence and will use fireworks only if they have that licence.

However, there is a significant problem with the antisocial use of fireworks in Scotland, and it is unlikely that people who fall into the category of misusing fireworks will apply for a licence. Those people are more likely to obtain fireworks on the black market, which could develop a trade for fireworks to be available from unregulated sources. That is what has happened in a number of other countries where similar schemes have been introduced. In the Criminal Justice Committee, there was much discussion about people buying fireworks out of the backs of white vans.

If we look across Europe, we see that restrictions were brought in in Italy in 2015, but there is no sign that the significant antisocial and dangerous use of fireworks in that country has been impacted. There is evidence of illegal fireworks factories, with large quantities of illegal fireworks and explosives being seized by authorities. Indeed, in spite of those regulations, it was reported in January 2021 that, following the new year, which is the biggest fireworks event in Italy, 79 people were injured and a huge number of birds were left dead. Sky News Italia reported on 1 January 2022 that, on new year one year later, in spite of bans that had been brought in in some cities, 124 people were injured; 31 people were hospitalised, of whom 14 were seriously injured; and there were 20 minors among the victims.

In the Republic of Ireland, fireworks have been banned, but that has not addressed the antisocial use of fireworks, where stockpiling and the illegal use of fireworks are significant problems. In Northern Ireland, a licensing scheme has been introduced, but there is significant evidence of the unlawful use of fireworks that have been illegally imported.

As I said, the bill makes it a criminal offence to buy or use fireworks outside specified days, which will stay in place whether there is a licensing scheme or not. The issue is what the benefits are of having a licensing scheme, as set against the risks of a black market, with people buying from unregulated sources that are less likely to comply with safety and industry standards.

Indeed, and another feature, as the member knows, is that very few fireworks convictions are being taken through the courts, despite the fact that there are thousands of complaints each year.

The two main reasons, as I understand it, that the Scottish Government gives for a licensing scheme—and the minister will come back to comment on this, obviously—are that it is an attempt to shift the culture around fireworks in Scotland and that anyone who applies for a licence will be required to undertake an online training course.

I agree that there is definitely a need to shift the culture around fireworks. We have a significant problem with the antisocial use of fireworks, including fireworks being used as weapons against emergency services workers and others; pets and other animals often being distressed; and particular problems being caused for specific groups such as those with autism.

We need to change the culture; the issue is whether a licensing scheme of this nature will do so. There is no doubt that it will prevent some people who would set off fireworks in their gardens from doing so, which I think is the point that Audrey Nicoll was making, but the risks of a growth of a black market are probably more significant.

I agree that there is a strong argument for training and I would support robust face-to-face training for those buying fireworks on how to handle them, but there is no suggestion that that is being proposed here—

Of course.

This is an enabling piece of legislation; it will allow the Scottish Government to introduce a licensing scheme by delegated legislation. Any licensing scheme needs proper scrutiny by this Parliament and, for that reason, I ask for support for all the amendments in the group.

We know that the creation of these restrictions is likely to lead to the demise of specialist fireworks shops, which currently provide advice and guidance, and we believe that the creation of this licensing scheme has the potential to create more problems than it solves.

I move amendment 2.