Chamber and committees

I do not think that I have anything to add to the previous responses that the First Minister gave, except to reiterate the point that the cost of that will not fall directly on the justice portfolio but will be borne across the whole of Government. I cannot tell you what the ultimate cost will be, because it depends on factors that are outwith my control and, obviously, pre-dates my time in office. I do not know whether my colleagues who were in post when that became a live issue have anything to add, but I cannot add to what the First Minister said previously.

I have chopped some of the commentary that I was going to make because you have had a long morning and the SSI is not dissimilar to ones that the committee or its predecessors have considered in the past.

The draft International Organisations (Immunities and Privileges) (Scotland) Amendment Order 2022 confers various legal immunities and privileges on the Inter-American Investment Corporation—IIC—and on persons associated with that organisation so far as that is within the devolved competence of the Parliament.

The order is limited to the issue of privileges and immunities. By way of background, I mention that the IIC is the main private sector arm of the Inter-American Development Bank Group—IDB—which lends to Governments and the IIC. The UK has opted to join the IIC, and the conferral of immunities and privileges to the IIC is required to ensure that the UK can fully comply with its obligations under article 7 of the IIC’s founding agreement. Joining the IIC offers the opportunity to be part of an important organisation in the Latin America and Caribbean region, which will support economic growth and leverage further private sector resources for development financing.

To assist the committee, I will say a little about the nature of the privileges and immunities involved. The conferral of legal capacity and privileges and immunities is necessary to ensure that the IIC can function as an international organisation in the UK. The order grants the IIC immunity from suit and legal process, inviolability of archives and premises and exemption from taxation. It also grants personal privileges to the IIC’s officers and employees: immunity from legal process with respect to official acts and exemption from income tax. The income tax exemption does not apply to British citizens.

The privileges and immunities conferred by the draft order are granted primarily on the basis of strict functional need. They are no greater in extent than those that are required to enable the IIC to function effectively.

So that the privileges and immunities are conferred in accordance with the agreement, the UK Government has introduced a statutory instrument through affirmative procedure, with the expectation that it will come into force late this year or early next year. The UK Government also laid its SI in Parliament on 11 October.

I welcome the opportunity to hear members’ views on the order and I commend it to the committee.

To clarify, convener, do you mean between different portfolios?

That relates to the point that Katy Clark made, which is that, if we build new prisons, they can be made more efficient and savings can be made in that way. I acknowledge that, but we cannot get away from the hard fact of the Government’s capital allocations, which have to cover schools, plants, machinery, cars and other vehicles for various services. We have to live within the envelope that we have, and I would say that it is a false envelope, because it was originally based on the Maastricht criteria, if we want to go back to that—the UK wants to cap the total level of borrowing to that extent.

As you rightly say, borrowing to improve public facilities pays for itself in the long term; I agree with that, which is why we are replacing Barlinnie. Members know about the programme of replacements and improvements that we have in place across the prison estate, and we are trying to work our way through that, but we can go only at the pace at which the money allows. To repeat my earlier point, that money is going less and less far because inflation is eating into it. However, I accept that, if we can replace prisons such as Barlinnie, we will make savings in on-going costs.

Thank you for the opportunity to speak briefly about the draft Scottish Biometrics Commissioner Act 2020 (Code of Practice) (Appointed Day) Regulations 2022. The Parliament passed the 2020 act in March of that year. The legislation speaks to some of the key societal issues of our time, touching on data protection, privacy, human rights and ethics as they relate to the police’s use of very personal information. The Scottish Government therefore welcomed the Parliament’s appointment of Dr Brian Plastow as Scotland’s first Biometrics Commissioner in April last year.

Given the rapid increase in the use of biometric data and technologies, it is important that we have an independent commissioner who will raise public awareness about rights, responsibilities and standards, as well as monitor compliance with such standards. It is vital that a clearer understanding of those issues is promoted in our communities, especially for young people and for vulnerable people.

An integral part of the legislation was for the commissioner to prepare a code of practice. That code has been prepared by the commissioner, and it symbolises what I believe is Scotland’s progressive approach to biometrics in a policing context. It is worth mentioning that the code is the first of its kind in the world. It is designed to promote good practice, transparency and accountability by setting out an agreed framework of standards for professional decision making. It is intended to strike the right balance between the needs and responsibilities of policing and the criminal justice system and the fundamental obligation to guarantee the basic human rights, privacy and freedoms of individual members of the public.

The commissioner has developed the draft code in consultation with key interests, including the bodies that will be subject to the code, statutory consultees and other bodies that are represented on the commissioner’s advisory group. Earlier this year, the committee had the opportunity to consider a draft of the code, alongside evidence from the commissioner, and I know that the contents of the draft code were viewed positively by committee members.

The purpose of the instrument is to bring the code into force on the appointed day. As agreed with the commissioner, the day that is proposed is 16 November 2022. From that day, Police Scotland, the Scottish Police Authority and the Police Investigations and Review Commissioner will be required to comply with the code. The commencement of the code will therefore represent a major milestone in the implementation of the 2020 act.

The Scottish Government is happy to work with the commissioner and other partners to ensure that an ethical, proportionate and lawful approach continues to be taken in the collection, use, retention and disposal of biometric data in Scotland for policing and criminal justice purposes.

Yes.

We will have to disagree on that. I have laid out the Crown Office’s current position, but perhaps what I am about to say might help Mr Whittle in relation to the points that he has raised.

In addition to what I have already said about people being notified of or being able to find out the outcome of cases, I can tell members that the Crown Office will be launching a new digital witness gateway service later this year. In fact, it is included in the year 1 delivery plan for our vision for justice. In that first year, delivery will focus on providing access to statements for witnesses and confirming witness availability for trials. However, the Crown Office has made it clear that further services and functionality will be added as part of planned continuous improvements. That will include exploring the communication of case outcomes to victims through the gateway.

There might be situations in which the proactive communication of case outcomes, as has been referred to by Mr Whittle and others, would be considered appropriate over and above the Crown Office’s existing practice. I think that, instead of our requiring the Crown Office to do that as a matter of law, the issue is most appropriately dealt with in a holistic way through the planned initiatives that the Crown Office has already committed to exploring in the very near future.

In practice, the majority of fiscal fines are deemed accepted by the offender. That means that unless the alleged offender refuses the conditional offer by giving notice to the clerk of the court within a period of 28 days from the day that the fiscal fine is issued, they will be deemed to have accepted it. In the event that payment is not made, there is separate enforcement by the court service.

The resource implications of the Crown Office monitoring the acceptance of fiscal fines in that context and proactively identifying relevant complainers in the manner required under amendment 1040 would be considerable, especially before the planned work on the digital witness gateway is carried out. It would put additional pressure on the Crown Office at a time of significant resource pressure across the justice system and when it is trying to deal with a substantial backlog—which I repeat has not gone away, although it is somewhat reduced.

That might be of some comfort to Mr Whittle and others who have raised concerns with regard to the Crown Office seeking to adapt and evolve its interaction with witnesses and victims. For all the reasons that I have mentioned, I invite Russell Findlay not to move amendment 1040.

I have made the point that, if we are to have such a change, it deserves to be considered on its own merits, and the work should be done beforehand. I am not saying that the member has not raised a valid point, but it would have to be considered on its own merits by the committee and by the Government.

I would also be concerned about the unintended consequences of agreeing a new policy in such a sensitive area of criminal procedure. Unfortunately, the backlog of cases that has built up as a result of the pandemic means that cases are taking longer to reach court. I recognise that that impacts in particular on complainers, witnesses and accused people who are awaiting trial, especially in sexual offence cases, and that these amendments are intended to address that problem. I would note, though, that these issues, and the effects of the pandemic, are not unique to the Scottish judicial system.

However, I am concerned that amendments 1001 and 1002 could have consequences that I think Mr Whittle would not intend. The exceptional circumstances test is, in fact, a much higher bar than the existing cause shown test. It has to be assumed that such a new test would create a presumption that applications to extend the statutory time limits, whether made by the prosecution or by the defence, would ordinarily be refused, and that they would be granted only in exceptional circumstances. When a judge refuses an application to extend a statutory time limit, there are two possible outcomes: the case proceeds to trial as it stands, assuming that a trial date has been fixed, or it falls.

As I discussed in relation to the previous group of amendments on emergency release, it is important to note that the Scottish Government has no current plans to utilise the power to release prisoners early, but, as we have discussed, it is necessary that we retain the power to take prompt and effective action if it becomes necessary to do so to protect the safe and effective operation of our prison system and the health and wellbeing of prisoners and prison staff.

Amendments 1024 and 1025, in the name of Graham Simpson, would significantly impair the Government’s ability to take necessary and proportionate action to ensure safety in prisons. For that reason, I cannot support either amendment. Amendment 1024 would remove entirely the option of using the made affirmative procedure for emergency release regulations. The result would be that, no matter how dire the situation, emergency release regulations would have to go through the draft affirmative procedure, and the added time that it would take to complete that procedure would delay the implementation of the release process. If the Parliament was in recess, it could take even longer. When good order in our prisons and the lives of prisoners, prison staff and their families might be put at risk, delaying action on that scale would simply not be appropriate.

The same problem arises with Mr Simpson’s amendment 1025, which would allow the made affirmative procedure to be used, but only after a ministerial statement in the chamber and the Parliament voting to approve its use by resolution. Again, especially during a parliamentary recess, that would build delays into the process in a way that would risk lives and good order in our prisons. I am sure that that is not what Mr Simpson wants, and it is not what the Delegated Powers and Law Reform Committee has called for. I invite Mr Simpson not to press amendment 1024 and not to move amendment 1025.

Amendment 1026, in the name of Graham Simpson, would, broadly, do two things. It would create new process requirements for the Government to meet if emergency release regulations were produced under the made affirmative procedure, and it would make any regulations that were produced under that procedure subject to a one-year sunset clause.

A one-year sunset clause on emergency regulations is of questionable value. In practice, the whole point of emergency release regulations is to free up capacity in the prison estate rapidly, so it is hard to imagine that regulations would be made to have effect over a period exceeding one year. For example, releases under the Release of Prisoners (Coronavirus) (Scotland) Regulations 2020 were effected over a 28-day period.

It is also odd for a one-year sunset period to be attached specifically to regulations produced under the made affirmative procedure. Regulations under the made affirmative procedure cease to have effect unless they are approved by resolution of the Parliament within 28 sitting days of their being made, so, by definition, any regulations that were still in effect one year after being made would have been approved by the Parliament, just like regulations that are made under the draft affirmative procedure, but Mr Simpson does not seem to think that those regulations need to be made subject to a one-year sunset clause.

I appreciate that applying a sunset clause to regulations under the made affirmative procedure was a general recommendation of the Delegated Powers and Law Reform Committee in relation to the bill. The Government’s response to the COVID-19 Recovery Committee indicated agreement with that underlying principle, but with the caveat that it would be appropriate only in relation to the nature of the power in question. As I have just said, such a measure does not seem appropriate in respect of regulations on the early release of prisoners.

Amendment 1026 would also add some process requirements in relation to regulations that were produced under the made affirmative procedure. Amendment 1008, in my name, would do the same, and members will not be surprised that I invite them to support my amendment over Graham Simpson’s amendment.

Both my amendment 1008 and Graham Simpson’s amendment 1026 call for regulations under the made affirmative procedure to be accompanied by a statement explaining why the regulations need to be made urgently under that procedure.

I have considered the issues that were raised during stage 1 by the Delegated Powers and Law Reform Committee and the COVID-19 Recovery Committee. Therefore, as signalled in the Government response to the committees, amendment 1008 provides for an explanation of urgency if the made affirmative procedure needs to be used in urgent circumstances. I consider that my amendment 1008 fully addresses the points that were made by scrutiny committees at stage 1 and should be preferred.

Members will be aware that the parliamentary authorities are working with Government officials on a protocol for an expedited draft affirmative procedure in appropriate cases. In line with other discussions on how such a statement should be provided with regard to other aspects of the bill that could be subject to the made affirmative procedure, I suggest that it would be appropriate to use a similar process to the one that has been used over the past two years for the Covid public health regulations. That process involves the minister writing to the Presiding Officer and committee conveners explaining the circumstances.

I invite members to support amendment 1008, in my name, and I ask Mr Simpson not to press amendment 1024 and not to move amendments 1025 and 1026.

Before I turn to individual amendments, I will make a couple of general comments. I reiterate that the measures that we are discussing are temporary measures that we are seeking to extend. We have already increased the limit of fiscal fines to £500. That has perhaps not been fully clear.

Some of the questions that have legitimately been raised can be answered only by the Crown Office and Procurator Fiscal Service. I cannot answer for the service in relation to those matters.

Different jurisdictions have tried to deal with such matters in different ways but, in Scotland, it has been our practice to make sure that the powers in question are exercised by the Crown Office and Procurator Fiscal Service. Fines can be issued directly by the police in England and, I think, in Wales, so we have taken a different approach in that regard.

Amendments 1037 and 1039 seek to remove provisions that were originally made through the Coronavirus (Scotland) Act 2020 that enabled alternative action to prosecution to continue to be taken in a wider range of summary cases as an alternative to prosecution in court.

Amendment 1037 seeks to remove the provision in the bill that retains, for a further period, the increase in the maximum level of available fiscal fine from £300 to £500. That measure has been in force since 7 April 2020 and represents a small but important part of the wider response to the on-going recovery of the justice system from the significant impacts of coronavirus, which are expected to last for a number of years. An increase in the available upper limit of fiscal fine to £500 has allowed a greater number of cases to be diverted from summary court proceedings, without the need for court procedure and associated appearance at court. Crucially, that has freed up the courts and prosecutors to deal with more serious cases, and it has eased the burden on the courts as they deal with the backlog that built up during the pandemic. We are not talking about a theoretical or hypothetical situation. That has had a direct effect on our ability to deal with the backlog, the witnesses, the victims and everyone else who is involved in those cases.

Amendment 1039 seeks to remove the provision in the bill that provides for a revised scale of fixed penalties. As members will be aware, any penalties that a prosecutor offers must reflect the scale that is prescribed under the Criminal Procedure (Scotland) Act 1995. The Coronavirus (Scotland) Act 2020 introduced a new temporary fiscal fine scale to give effect to the increased upper limit of £500.

The bill makes further minor adjustments to the fiscal fine scale by introducing a temporary, more balanced nine-point scale. The new scale includes the seven levels of fiscal fines of up to £300 that were available to prosecutors before the 2020 act and adds two levels of fiscal fine up to the new maximum of £500.

The revised scale provides for more balanced increments and, crucially, ensures that there is no increase to the level of fiscal fine that is offered in individual cases that would have been dealt with in the same way before the pandemic. That allows for proportionate penalties to be issued by prosecutors for lower-level offences, while providing a higher maximum penalty for appropriate cases.

Retaining the Crown Office and Procurator Fiscal Service’s ability to divert a greater number of cases from the courts through the measure is an important and proportionate part of the wider approach to enabling the justice system to recover from the impact of coronavirus.

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.