Chamber and committees

The children’s hearings system delivers legally binding decisions for children and young people in Scotland who are most in need. It relies on highly trained and dedicated volunteer panel members to deal with 30,000 hearings each year.

Legally, each three-person panel has to include a mix of male and female members. Hearings can be arranged anywhere in the country, sometimes at extremely short notice. In short, it is a logistical challenge that has been met head on by the volunteer community, but the pandemic has impacted on the availability of volunteers and there have been long-standing issues with recruitment of male panel members in particular. Those issues have been exacerbated during the past two years.

The Coronavirus (Scotland) Act 2020 relaxed the requirement for having male and female panel members for every hearing. The relaxation was allowed to expire on 30 September 2021. However, the situation has changed since the beginning of this year. The number of panel members leaving their volunteer roles, coupled with the number of males being recruited being lower than required, has led us to a point at which the challenge of managing the statutory requirement to have male and female members on every panel is now acute. Continued adherence to the requirement in those circumstances risks delays in decision making to the detriment of some of the most vulnerable children and young people in Scotland.

Members will be aware that Children’s Hearings Scotland has written to the committee and the Government asking for legislative action. Amendment 1003 retains the principle that children’s hearings panels should have male and female members but it would allow a hearing to go ahead when achieving that is simply not practicable. The amendment thereby ensures that children’s hearings can continue to make decisions timeously, and it reduces the overdependence on a small number of volunteers, which, if the situation were to continue, might result in their deciding to leave the service altogether.

The amendment has broad support from stakeholders who work across the hearings system. Through the work of Children’s Hearings Scotland, we know that children and young people would value the flexibility that the change would introduce.

As members will be aware, work is under way to consider the future of the children’s hearings system. I believe that the change is needed now, until the hearings system working group develops its recommendations for the future.

I move amendment 1003.

I have started to cover that, and I am about to cover it a bit more. However, to the extent that any of that remains unclear, those are questions for the Crown Office and Procurator Fiscal Service, on which I do not want to intrude.

I will repeat my previous point, because it is directly relevant to Mr Findlay’s point. In accordance with the guidance issued by the Lord Advocate, prosecutors have been directed to first consider offering a direct measure, particularly a fiscal fine, in relation to appropriate cases that would otherwise have proceeded in justice of the peace courts. That measure will be used only when independent prosecutors consider it appropriate to do so in the public interest, having regard to the individual facts and circumstances of each case and COPFS’s prosecution code. I know that the committee has taken evidence from COPFS on the issue—perhaps that helps with some of the points that have been raised so far.

I confirm that fiscal fines are not mandatory penalties—safeguards are built into their operation. Anyone who is offered a fiscal fine as an alternative to prosecution might refuse such an offer by giving notice to the court to that effect. That refusal is treated, as we have heard, as a request by the alleged offender to be prosecuted for the offence. The fiscal will then decide what action to take in the public interest. That measure allows, where appropriate, for a greater range of cases to be dealt with outwith the court setting, and it remains an important part of the on-going recovery of our justice system from the impacts of coronavirus.

I will try to be brief, convener.

For the past two years, we have provided regular reports to Parliament on the operation of the provisions in the coronavirus acts. I recognise that Jamie Greene’s amendment 1030 seeks to maintain similar oversight and transparency, and I am supportive of that principle. I also accept absolutely the importance of continuing to engage with victims organisations on the measures, which Mr Greene’s amendment 1029 seeks to provide for. However, the drafting of any additional consultation and reporting requirements will need to be considered carefully to ensure that they complement and work alongside the existing provisions in the bill, which already require ministers to provide Parliament with a statement of reasons when seeking to extend measures included in the schedule. I therefore invite Jamie Greene not to press his amendments and instead to work with us on a stage 3 amendment that we are able to support.

Amendments 1031, 1032 and 1033 would make regulations suspending, reviving and expiring early the temporary justice measures subject to the affirmative procedure. I do not support those amendments. The Scottish Government is committed to expiring temporary provisions enacted to respond to the Covid pandemic when they are no longer necessary or proportionate. We also have a responsibility to ensure that the right measures are in place, at the right time, to support our justice system as it recovers from the backlog. Mr Greene said earlier that the Government can take such steps when it suits it. It certainly suits the Government to take action, in the face of a deadly virus, to protect the health and safety of individuals.

Using the negative procedure for the powers in sections 39 and 41 supports the Government’s aims. It provides the flexibility to suspend, revive or expire provisions swiftly, in response to changing or unforeseen circumstances, while still allowing for parliamentary scrutiny. A decision to expire, suspend or revive provisions would be led by the evidence at the time. Using the negative procedure means that we can take action that will come into effect quickly, when the evidence supports doing so. Using the affirmative procedure could mean that our response to the evidence would be delayed and that measures would not be in place when they were most needed or would be in force for longer than was necessary. In particular, applying the affirmative procedure to the regulations would mean that provisions that were no longer necessary could not be switched off during the months of the Parliament’s summer recess without the Parliament being recalled. The Delegated Powers and Law Reform Committee has not called for that in relation to the bill, nor is it what the Parliament wanted in relation to either of the two emergency coronavirus acts.

I therefore do not support amendments 1031, 1032 and 1033, and I invite Jamie Greene not to move them.

The overarching purpose of the UK Government’s Online Safety Bill is to establish a new regulatory regime to address illegal and harmful content online. In particular, the bill creates new duties on providers of internet services to deal with illegal and harmful content and activity, and it confers new powers on Ofcom to act as the online safety regulator responsible for enforcing the legal requirements that are imposed on service providers.

The power to legislate on the subject matter of the bill is almost entirely reserved to the Westminster Parliament. However, the bill extends the executive competence of the Scottish ministers in two very narrow areas, which is why the LCM is required.

First, it provides a power for the Scottish ministers to amend by affirmative order the list of education and childcare providers that are exempt from the legislative framework for the regulation of user-to-user internet services. I will briefly explain the reason why those services are exempt. Many education and childcare providers are subject to existing duties to safeguard children that require them to protect children online. Exemption ensures that the regulation of online safety is proportionate and that those education and childcare providers are not subject to duplication of regulatory oversight by Ofcom. The power enables the Scottish ministers to ensure that the descriptions of education and childcare providers can be updated to reflect any future changes to how such services are provided or to take account of different safeguarding duties applicable to such providers in Scotland.

Secondly, the bill extends the executive competence of the Scottish ministers by providing a power to amend the list of child sexual exploitation and abuse offences in part 2 of schedule 6 to the bill. The bill places a duty on providers of internet services to proactively remove content posted by users of their sites that would amount to a child sexual exploitation and abuse offence. Those include, for example, offences concerning indecent images of children. The power will enable the Scottish ministers to update the list of offences to account for any future reform of the law in that area, instead of having to rely on those changes being made in the Westminster Parliament. That reflects the fact that the underlying criminal law in the area is devolved, making it appropriate that the power sits with the Scottish ministers.

I am happy to take members’ questions.

I very much agree with those sentiments. However, the bulk of the legislation is reserved. The two areas that we would want to monitor would be those very narrow ones. I am sure that, in general, everyone will be looking at how effective the legislation is, for the reasons that Pauline McNeill has outlined.

Thank you for the opportunity to speak to the committee about the Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No 2) Regulations 2022. The regulations have been brought forward primarily to support the proposed replacements for the temporary measures that were introduced to support legal aid providers at the beginning of the pandemic by way of the Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Coronavirus) (Scotland) Regulations 2020, with permanent provisions with equivalent effect.

The measures that were introduced in the 2020 regulations benefited legal aid providers by providing for enhanced interim fee arrangements to support cash flow as well as provision to facilitate greater delegation between solicitors to assist with the management of cases and court appearances.

The provisions in this instrument align with the Scottish Government’s intention to make permanent changes to the Legal Aid (Scotland) Act 1986 by way of the Coronavirus (Recovery and Reform) (Scotland) Bill—namely an enhanced provision of interim fee arrangements to support cash flow to legal aid providers. The regulations also provide that a person who is being prosecuted under summary procedure and who has been liberated by police to appear at court on an undertaking may appoint a solicitor of their choice to advise or act for them even when a duty solicitor is made available, increasing access to a solicitor of their choice.

That is a brief overview of the regulations and their context. I am happy to try to answer any questions that might arise.

It is 2025. That is the proposal.

That is not what I am offering. What I have said is that, with regard to Jamie Greene’s suggestion of pulling out a particular category of activities—as Pauline McNeill has mentioned, the discussions between clients and solicitors—I do not know whether that is possible or practical. I am willing to discuss with officials whether it is and to have a meeting with Pauline McNeill, if she will find that useful, but I cannot commit to doing that at this stage.

I am happy to come back to the member at the end of my remarks.

It is important to consider the consequences of such a change, remembering that it is the most serious sexual offence cases, including all charges of rape, that are tried in the High Court. If an application for extension is made by the Crown Office, because a case is not yet ready for trial, and is refused, the Crown Office might well have no choice but to decide that the evidence required to prove the case beyond reasonable doubt is simply not in place, and the trial will therefore have to be abandoned. As Kate Wallace has said, that would risk leaving complainants feeling that justice had not been done. It would also mean that people who are accused of the most serious crimes could escape justice and might offend again.

If, on the other hand, the application was made by the defence, it would perhaps be more likely that the trial would proceed if the application was refused. However, if an application to extend the time limit had been made, for example, to secure more time to identify key witnesses, there is a risk that proceeding with a trial would increase the risk of a miscarriage of justice.

Whatever the position with regard to which party in the proceedings requests an extension, it is clear that the interests of justice might not be served with the much higher threshold of the time limit test that the amendment provides. For those reasons, I invite Mr Whittle not to move amendments 1001 and 1002.

I am afraid to say that the same concerns arise with amendment 1056. It is worth noting that it is wider in scope than the other two amendments, allowing the courts to extend the statutory time limits under section 65 of the Criminal Procedure (Scotland) Act 1995 in any case tried on indictment either in the sheriff court or the High Court only “in exceptional circumstances”. It is not limited to sexual offence cases. Because of the potentially severe unintended consequences that I outlined in response to Mr Whittle’s amendments 1001 and 1002, I invite Pauline McNeill not to move amendment 1056.

Amendment 1021 would require the Scottish Government to report to Parliament every six months on statistical matters relating to the remand population, including the size of the remand population, the average length of time that prisoners are being held on pre-trial remand and the number of prisoners given a custodial or non-custodial sentence, or found not guilty, who were held on remand prior to trial. I can see the merit in reporting on the remand population, given the concerns about the length of time that some prisoners have been held on remand prior to trial. However, I do not think that amendment 1021 quite works, as it is not clear exactly what the duty that falls on Scottish ministers to report on the size of the remand population and the average length of time prisoners are held actually is. It could be a snapshot at the end of the reporting period, say, or a rolling average—the amendment is not clear on that point.

Equally, I am not persuaded that the information on the disposals given in cases where the accused was held on remand prior to trial is necessarily a useful piece of information. Accused people can be held on remand for a variety of reasons that are not necessarily related to the seriousness of the offence that they have been charged with. For example, they might have breached their bail conditions or there might be a concern that they will not turn up to court if they are released on bail.

I also understand that the current information technology systems used by the Scottish Courts and Tribunals Service are not set up in a way that would enable that information to be obtained. Therefore, I would ask Ms Clark not to move amendment 1021, but I am happy to seek to work with her to see whether an amendment to address those issues could be developed in the short time that we have ahead of stage 3.

Amendment 1022 would require the Government to provide a quarterly review of the necessity of continuing extended time limits to the Scottish Parliament. As section 42 of the bill lays out, if the Scottish Government wished for the extended time limits—or indeed any of the temporary justice measures—to remain in force beyond 30 November 2023, the statutory instrument providing for that must include a statement of reasons for such a move. Therefore, the interests and scrutiny role of the Parliament are protected for extensions beyond the initial period provided for in the bill to 30 November 2023. Amendment 1030, which I will discuss in a later group of amendments, might also be relevant in this area.

Convener, I have tried to make clear that extended time limits are, in my view, a necessary measure, which other jurisdictions have also had to resort to, while the criminal court system recovers from the backlog created by the pandemic.

The letter that the committee received in response to the stage 1 report from the Crown Office gave a detailed breakdown of how fiscal fines are being used, including fines of up to £500. I think that, taken together with what I have just said about the use of such powers dating back to 1995, and about their being applied to the same range of offences—with the addition of offences that have been created over the past couple of years, mainly as a result of coronavirus restrictions—that will give a degree of clarity.

I am sure that Pauline McNeill will understand that I cannot answer for the Crown Office in relation to this matter. All I will say is that if there is a practical reason why the Crown Office feels that it is not possible to provide that information, I am happy to try to work with the committee on that. I cannot speak for any policy decisions that the Crown Office might make, but I am happy to work with the committee if there is a practical block to any information being provided.

Amendment 1038 is, in my view, defective, because it does not achieve what it seems to want to achieve. In any event, I oppose it on policy grounds, given the long-standing discretion, going back to at least 1995, that the Crown Office has had as independent prosecutors in using fiscal fines. For that reason, I ask the committee to reject amendment 1038.

Amendment 1040 seeks to introduce victim notification requirements for the Crown Office in cases that are dealt with by way of fiscal fines. First, it creates a proactive duty on the fiscal to inform the complainer when a fiscal fine has been accepted by an alleged offender in a given case. Secondly, the amendment creates a proactive duty on the procurator fiscal to inform the complainer when a fiscal fine has been rejected by an alleged offender and the outcome of any proceedings that result from such a rejection. It might well be the case that amendment 1040 is well intentioned, but I cannot support it.

As we heard from the Crown Office through its written response to the committee’s stage 1 report, it has existing statutory obligations under section 6 of the Victims and Witnesses (Scotland) Act 2014 to advise all victims of all case outcomes on request. That includes cases that are dealt with through alternatives to prosecution such as a fiscal fine or cases in which a decision to take no further action has been made. In other words, any complainer who wishes to know the outcome of a case, including fiscal fine cases, can ask the Crown Office.