Chamber and committees

I am pleased to open the debate on behalf of Scottish Labour. I begin by sincerely thanking my colleagues for an excellent and thorough stage 1 report.

Every year, during the bonfire period, we see the stress and strain that is put on our communities by the antisocial misuse of fireworks, as well as the burden that it puts on the police and emergency workers. The bonfire period appears to have expanded from one night to the best part of two weeks in recent times. Unfortunately, the bill solidifies that.

We do not believe that the bill goes far enough in many places and, as such, we are concerned that it might not change things on the ground. Scottish Labour proposed amendments to strengthen the legislation, but they were almost all rejected by the Government. For example, my amendment to further reduce the number of days on which fireworks could be purchased and used during both the bonfire and the new year periods—it was supported by the Dogs Trust—was rejected.

As has been referred to already, the disparate dates when fireworks can be bought and used is an issue. There is a bunch of 57 days around the calendar when fireworks can be used, with a different set of 37 days when they can be sold. The possibility for public confusion about that is clear and, of course, offences are attached to the provisions. I agree with Jamie Greene and wonder how enforceable they really are.

Sadly, the bill might not make a difference unless the Government is prepared to create more capacity for enforcement. Given the very low levels of enforcement for breaches of existing legislation on fireworks misuse, it is clear that we need to provide the police with adequate resources if we are serious about what we have just heard. Unfortunately, the legislation is being introduced at a time when police resources are definitely a subject for debate.

We have expressed concern about the lack of detail in the licensing scheme. My colleague Katy Clark examined that in great detail at stage 2 and stage 3, and we still say that it is possible to have the legislation without a licensing scheme, because there are permitted days for fireworks and days on which it would be an offence to set them off. However, our primary objection to the licensing scheme is that it runs the risk of fuelling a black market. The Government was too quick to dismiss that.

Furthermore, I lodged two amendments to keep any licensing fee small, and affordable for families, and those were rejected. At committee, we heard from Norman Donald from NJE Fireworks Displays, who warned that

“not everyone can afford a fee. Some families come to our shop to spend £30 on a small selection box because that is a once-a-year treat for their children. If you introduce a fee of £30, £50 or whatever, you could put that purchase out of their reach.”—[Official Report, Criminal Justice Committee, 23 March 2022; c 7.]

The important point is that the knock-on effect of a potentially complex and expensive scheme is the risk that people will turn to the black market. We have seen that in Northern Ireland. I have said already that the extent to which the bill was rushed through the Parliament means that we did not get a chance to examine this properly, but in Northern Ireland, which operates a similar licensing scheme, the Belfast Telegraph reports that

“black market fireworks are available everywhere.”

We also heard from the industry that it has concerns that the black market can consist of a wider range of different things, some of which are not currently legal. Bangers are a good example of that, and no one would want to see the rise of that extremely dangerous firework on our streets.

I felt that it was important to give communities the chance to request a firework control zone if they were enduring a lot of antisocial behaviour in relation to fireworks. I have many constituents in Glasgow who are keen to be able to request a firework control zone in their community because they feel terrorised by fireworks at certain times of the year, but unfortunately ministers were unwilling to support that proposal and it was rejected.

In its stage 1 report, the Criminal Justice Committee decided only on balance that it agreed with the general principles of the bill. As Jamie Greene said, it is quite extraordinary in this Parliament that a committee would be so critical, and I am disappointed that more was not done to address those concerns.

There are things in the bill that we pushed for, such as Police Scotland’s proposal for the simple possession offence. We were keen to see that.

However, the bill has many flaws. It was a difficult one for Scottish Labour to make a decision on. We are keen to send a strong message that the antisocial use of fireworks will not be tolerated. We must be certain to act on that.

I commend Jamie Greene for what I thought was a very considered speech. On balance, we will take a different position. We will support the Government on the bill, but I have to say that that decision was made on the balance.

I urge the Government, if it is serious about the control of fireworks in our communities, to demonstrate that by using the full force of existing law, and to allow the committee to drill down into any regulations that come before it, so that we have the opportunity to correct the things that we thought were wrong from the very beginning.

We can see that we are not attracting people into the profession. Given the loss of solicitors in the sector and the huge pay discrepancies, does the minister believe that, if Scotland is to stand up and say that we have properly resourced and good access to justice, we need to resolve that crisis now?

To ask the Scottish Government what its position is on reports that the Scottish Solicitors Bar Association says that the impasse on legal aid payments has meant that the entire criminal justice system is in “imminent danger of collapse”. (S6T-00828)

The minister said that Mercedes Villalba was trying to get a quick fix, but would he not accept that he is working with people in the SNP who, four years ago, could have supported my member’s bill to protect renters from exorbitant rent increases and that, if they had, we would have been a lot further forward than we are today?

On 25 April, criminal practitioners voted to refuse all new instructions in summary cases in specific domestic abuse cases. They stated that that was necessary due to the Scottish Government’s decision not to adequately fund legal aid. In 1999, a summary legal aid case attracted £550, but in 2022, that figure is £550.76, so the headline figures on increases do not reflect the reality of those fees. Another example is representing under-21s in remand cases—for complex cases, there is no longer a separate fee.

The Scottish Solicitors Bar Association, which is the nation’s biggest defence lawyer group, has said that negotiations have been a failure so far. A proposal on the table in order to engage with the Scottish Solicitors Bar Association would be welcome. It has also said that it has no choice but to decline cases because they are not financially viable, and it warns of a total withdrawal from the scheme by the beginning of next year if there is no negotiation.

Does the minister accept that if we do not resolve the issue, there will be a crisis in the service, and what will she do address those concerns?

If the Scottish Solicitors Bar Association has not raised those issues with the minister, I am raising them with her now. In the 10 years prior to the pandemic, there was a 25 per cent loss in the number of solicitors who were engaged in legal aid work. I am sure that the minister will take the point that there is not only a crisis in fees; there is a crisis of not having a properly resourced defence service. That is the direct result of the dramatic reduction in public spending on legal aid over the past 20 years.

In 2008, which is the benchmark that the minister is happy to accept, public spending on legal aid was £155 million, but in 2019-20, it had gone down to £130 million. There has been a fall of £85 million when inflation is taken into account. It is important that the Scottish Solicitors Bar Association says that the average rate for a newly qualified defence solicitor is £25,000, against £48,000 for someone who works for the Crown Office.

How can the First Minister give serious attention to addressing the fact that sexual crimes have increased by 15 per cent to the highest level since 1971—an issue that I know she cares deeply about—and to resolving the crisis in legal aid and the fact that morale in Police Scotland is so low that we are losing hundreds of police officers, if most of her Government’s attention will be focused on preparing the arguments for independence? Does that mean that she expects to put those issues on hold for the next 16 months? The people of Scotland have the right to know.

How can we get some transparency if we allow the time limits, which I hope the cabinet secretary agrees are lengthy?

The cabinet secretary did not answer the question why the Crown needs 260 days to prepare a case, so I hope that he will address that point. Under the Criminal Procedure (Scotland) Act 1995, it is possible for there to be a further extension at the end of the 320 days, so I would have thought that it would be helpful to have some transparency so that we know what is going on in our courts. This morning, I spoke to a lawyer who said that his client had been in Barlinnie prison for two years. I am sure that the Government would express some concern about that. We do not want to be in this situation.

Amendment 79 prevents appearances in custody courts from being virtual by default. Having visited the sheriff court in Glasgow to see how virtual court appearances operate in practice, I am convinced that they do not save time or resources; rather, they cost, on both counts.

The quality of the virtual experience was extremely poor. Virtual appearances in custody courts are slowing down courts, and courts regularly have to run late because of them, with all the costs that that incurs. It is not surprising that sheriffs and staff are not happy about that. If anything, as far as I could see, virtual custody courts add to the backlog. Further to that, as I said, the videolinks are extremely poor.

Citizens Advice Scotland and the Law Society of Scotland have raised concerns about our reliance on virtual hearings. The Law Society has argued that the use of virtual custody courts raises significant operational and human rights concerns. It noted that the evaluation of the Falkirk pilot in May 2022 was critical of the virtual custody process, absent significant additional investment, and stated that the issue of fairness to the accused is fundamental.

The Law Society has also said that the physical separation of the accused, the solicitors and the courtroom has had a detrimental impact on the overall process. Many solicitors have also complained that they cannot advise their clients, because they are not in the police station where their clients are being called during the custody hearing. The process has made it harder for solicitors to communicate with their clients, that is for sure. Police Scotland has said that it cannot support the fully virtual model without a complete overhaul of the custody process and significant investment in resources.

I put on record that I am extremely grateful to the cabinet secretary, Keith Brown, for the thorough way in which he has examined the issue. When he wrote to me last week, I was delighted to see that he had lodged amendments that have my full support. It is important, particularly in relation to custody hearings and other hearings, that physical hearings are the default. As Katy Clark said, it is important that, as we move forward and decide which aspects of the court process are suitable for virtual hearings, we are sure that such hearings are of good quality and do not compromise the quality of justice.

The cabinet secretary said that the Lord Justice General may have the power to decide on whether preliminary hearings in the High Court are virtual. I put out a plea that, when we examine all aspects of the court process, the Parliament has oversight of whether preliminary hearings are virtual. Those hearings have been physical and are really important—they are where the defence and the prosecution agree their evidence, although there are no witnesses and the accused is not there. It is right that the Parliament has oversight of that and that it is not simply a matter for the Lord Justice General.

I am delighted to support the Government amendments, and I will not move amendment 79.

Amendment 76 seeks to ensure that, if an extension is requested to already-extended time limits and the application is granted, the judge or the court must state

“the reason for the application, and ... whether the application was made by the prosecution or the defence.”

Amendment 77 asks for regular six-monthly reports to Parliament, setting out that information.

I strongly believe that we need more transparency about the degree to which extensions of time limits are being sought and granted. Also, and importantly, what types of reasons are being given for why the extensions are needed? It would be wrong to assume that an extension would be given for a minor issue if the purpose is to ensure that we can conduct our cases in court, following what is an extraordinary backlog. The time limits that are allowed are already lengthy, so it is concerning to me that further extensions are being requested. I believe that Parliament needs to understand the matter better. Scotland’s time limits used to be best practice in the international arena. We are moving away so fast from something that had been well established.

Amendment 86 would amend the time limit in relation to remand in High Court solemn cases until the service of the indictment on the accused, from 260 days to 170 days. Before the original coronavirus legislation, the time limit was 80 days. That means that the Crown has up to 260 days in which to prepare a case. There is no court time required. We are entitled to answers as to why it could take up to 260 days to prepare the Crown case.

I have also heard that the Crown Office has had an extra £50 million as an additional resource. That makes no sense to me. If we accept that the time limit for preparation of a case in the High Court can take up to 260 days, all the other time limits will follow after that. As Katy Clark rightly said, it is human nature for people to work to a deadline. If we give longer—260 days—there will be a tendency to think that that is the deadline. We have been told by ministers up until now that the Crown will not have to use all that time—that is just the time at the outset.

The Law Society of Scotland has stated that it does not consider the Government’s proposed time limit extension to be proportionate. As for the extension of the time periods, the immediate public health restrictions in court proceedings have now been revoked.

The number of people being held on remand—which Katy Clark also mentioned—remains at an historical high. It is important to understand the relationship between the extension of the time limits and the fact that Scotland has a scandal in its prisons, with a very high remand population. As of March 2022, a staggering 29 per cent of prisoners were on remand; 25 per cent were untried and 4 per cent were awaiting sentence.

Amnesty International has voiced concerns over the growing number of people on remand in Scotland. It has pointed out:

“In international law, the detention of individuals who are awaiting trial is a matter of special concern. They have yet to be found guilty of any offence and are therefore innocent in the eyes of the law. This is a fundamental human rights principle, enshrined in the Universal Declaration of Human Rights ... and elaborated on in the International Covenant on Civil and Political Rights ... specifically the rights of a detained person to know why he or she has been arrested and to be brought before a court of law at the earliest possible opportunity.”

Members must know, when voting for or against the amendments in the group, that an accused person in remand in a Scottish prison will not see the full case against them until up to 260 days, potentially.

Last year, the Howard League reported that, between 2014 and 2017, almost 60 per cent

“of remand prisoners who were later convicted in summary proceedings”

and almost 30 per cent

“of remand prisoners who were later convicted in solemn proceedings, did not receive custodial sentences”.

I ask members from the governing parties to think about that. It is absolutely staggering. There could be people in a Scottish jail for up to a year waiting for their cases to be heard, and 28.9 per cent of them will not get a custodial sentence. That is an absolute scandal.

Although I concede that some extension to the time limit should proceed, we must move in the right direction towards getting back to the pre-Covid time limits. During the debate at the Criminal Justice Committee on 8 June, the Cabinet Secretary for Justice and Veterans said:

“Removing or reducing the length of the time limit extension ... will not result in cases being heard more quickly”—[Official Report, Criminal Justice Committee, 8 June 2022; c 45.]

on time spent on remand until service of the indictment. I would be interested to hear where that assertion comes from. I could understand it if ministers were talking about a situation in which there is not a court available. By the way, as was discussed earlier, the lack of defence counsel and of defence lawyers could also hold up the court case.

Surely there is universal concern in the Scottish Parliament about the fact that, even as we come out of and recover from difficult circumstances, we have so many people in Scottish jails awaiting trial, but would allow such extraordinary time limits without question.

If ministers are not likely to support most of the amendments in the group—I appreciate that—perhaps they could at least consider supporting the amendments that provide for us to be able to record why an extension was granted and who asked for it. At the very least, would the cabinet secretary consider agreeing to the idea that Parliament should get to see that information every six months? If we think that we are standing up for fair justice, the least that we should be prepared to do is see every six months what is happening in our courts and what is happening to untried people in Scottish jails, in order that we can ensure that we do not override the important question of access to, and fairness in, our justice system