Chamber and committees

Amendments 2 and 3 are a response to the committee’s recommendation that the pardon be extended to offences that occurred in the community instead of its applying only to offences in the context of

“a picket, demonstration or ... similar gathering”.

Amendment 5 adds theft to the list of qualifying offences, with an additional eligibility criterion created in relation to that offence.

Amendment 3 is quite complex—I apologise for that, convener. It amends section 1 by removing the original conditions A and B and replacing them with differently worded conditions A and B and new condition C. Replacement condition A broadens the scope of where and the context in which qualifying offences might have taken place under the condition, by providing that the conduct that gave rise to such an offence must have occurred while an individual

“was engaged or participating in ... activity”—

including “ancillary” activity, such as connected travel—either in support of or in opposition to the miners’ strike. That replaces the narrower reference to

“picket, demonstration or ... similar gathering”

in the current version of condition A. Replacement condition A also specifies that any activity that occurred

“for a reason unrelated to the miners’ strike”,

such as “a personal matter”, is excluded from the scope of the pardon.

Replacement condition B provides that conduct that

“occurred in response to conduct that meets condition A”—

well done if you can follow that, convener—is also included within the scope of the pardon. The intention is to cover both parties to an altercation in the community where, for example, strike-related abusive comments made by one party are responded to with more general threats or insults by another. Replacement condition B also specifies that any activity that occurred

“for a reason unrelated to the miners’ strike”—

for example, “a personal matter”—is excluded from the scope of the pardon.

Amendment 3 also introduces new condition C, which sets out that conduct that gave rise to the offence of theft is covered by the pardon if it occurred

“because of economic hardship arising from participation (whether by the individual or another person) in the miners’ strike”.

The economic hardship referred to in condition C could be either the hardship suffered by the person convicted of the theft, or the hardship of another person, which was to be relieved by the item which was stolen—for example, a member of a striking miner’s household who stole an item in order to relieve the hardship of another member of the household.

Amendment 2 amends section 1, so that conditions A or B apply only to the qualifying offences of breach of the peace, an offence under section 3 of the Bail etc (Scotland) Act 1980 on breach of bail conditions, and an offence under section 41(1)(a) of the Police (Scotland) Act 1967 on obstructing the police. It also amends section 1(1)(b) of the bill so that new condition C applies only to the qualifying offence of theft. That is required, because theft is not activity supporting or opposing the strike, or a direct response to such activity, and therefore the offence needs a separate eligibility criterion. Ultimately, the second group of amendments seeks to respond positively to the recommendation in the committee’s stage 1 report that the Scottish Government consider extending the pardon to convictions for qualifying offences that occurred in mining communities.

I now turn to amendment 3A in the name of Pam Duncan-Glancy, which seeks to replace the reference to “supporting or opposing” proposed in amendment 3 in my name with a broader reference to “relating to” the strike. I am not sure on what basis that wording is considered to be preferable to the wording that I propose in amendment 3, and I look forward to hearing the explanation for that. I also sound a note of caution: the broader formulation suggested by amendment 3A is rather vague and might create uncertainty that could make it harder for people to self-assess whether they qualify for the pardon.

I will turn briefly to amendments 9, 10, 11 and 12, lodged by Alexander Stewart. Taken together, the amendments seek to remove all references to “other similar gathering” from section 1. Given that amendment 3 in my name removes that wording from the bill, I consider the amendments unnecessary. In a similar vein, amendment 15, in the name of Pam Gosal, seeks to remove references to “intended participation, or” in section 1(3)(b). Amendment 3 would also remove that wording.

Amendment 17, in the name of Richard Leonard, amends section 2 of the bill to make an offence under section 7 of the Conspiracy and Protection of Property Act 1875 a qualifying offence. I fully recognise the member’s wish to include in the pardon an offence that some would argue is not dissimilar to the sort of conduct associated with a breach of the peace, but I continue to have concerns about the proposal, given the violence and intimidation aspects mentioned in the 1875 act. A conviction under that act could cover a wide spectrum of behaviour relating to attempting without legal authority to compel another person to support the strike or not to go to work—for example, the use of violence to intimidate another person or their family or to damage their property.

I am willing to consider the matter further, and I am also happy to discuss directly with the member the wording and basis of the amendment. I should say that further anecdotal evidence indicates that there were 16 convictions for that offence, all of them in Strathclyde, with a maximum fine of £50. Today, however, I urge members to carefully consider whether such behaviour might cross the line between supporting industrial action and intimidating a miner who chose to work, or even intimidating their family. As I have said, I am willing to have further discussions with the member on the issue.

I move amendment 2.

I believe that prisoners’ rights figure in the minds of not just governors but individual prison officers. You mentioned some of the assurances that we have on that. We have the inspector, who is able to challenge where she believes that prisoners’ rights have not been observed. As Jamie Greene has asked for, we have the assurance on transparency to ensure that, when such measures are introduced, that is logged and people know when it is done and why, as well as when the measures finish and the reasons for that.

The Prison Service has done different things to try to mitigate the impact of that. I am sure that Allister Purdie can set this out more effectively than I can—although Jamie MacQueen is the expert on the interplay between different rights—but, for example, in-cell telephony has been a big boon to prisoners. Of course, that is not without its issues, either. That shows that there has been a recognition that such extraordinary measures impact on prisoners’ rights, and we have tried to ensure that the impact has been mitigated. There are any number of checks on that. If we can increase the checks by responding to Jamie Greene’s point about transparency, we should do so.

Those are the reassurances that I would give. It might be worth hearing from Jamie MacQueen, who, like you, I am sure, is the expert on the interplay between the rights that are affected.

Your starting point was to ask whether we are listening to those concerns and taking them seriously, and we are. That speaks to the point about improvement that I made to Rona Mackay, which was that we should listen and see whether we can achieve agreement.

However, you are absolutely right that, even among defence solicitors, we see the extremes of view that you mentioned. We are not just getting different views from witnesses from different organisations; different points of view are being expressed within, say, the Law Society or the bar associations. We want to listen to see whether we can help with that. If those are the concerns of the people on the front line who are trying to be as effective as possible for their clients, we have to listen and see whether there is a way of overcoming them. If business is all virtual, it is hard to see how we could do that, but there might be exceptions.

The Government is therefore willing to listen to possible remedies, and we have a lot of good people in Government who might be able to help us to find solutions in tandem with our justice partners.

I might ask Allister Purdie to come in on this. It is certainly true, as I think that I said in the previous evidence session, that we applied additional guidance, beyond the Scottish Government guidance, through Public Health Scotland and others. There was a huge amount of provisions and guidance. That was done in recognition of the particular circumstance of prisons, which are, of necessity, confined spaces. I was not in Government when the pandemic began, but everybody was very fearful of what might happen to prisoners because of that.

Prisons will have their own necessity for taking action, and they might not always be completely aligned with the general population, which is able to take other measures. That is the general rationale for the extension.

I think that I mentioned the figures on Covid cases, at least from 4 March, in my opening statement. You can check back and confirm that.

I will take a stab at the current prison population; the latest figure that I saw was 7,502 or 7,503, but I am happy to be corrected on that. If I can just look back at my statement, I can tell you the number of inmates who currently have Covid—unless you have that figure to hand?

Sorry, I meant Allister Purdie—I thought he might have the figure to hand, but it is in my statement—

Yes, although it has to be said that that pilot would have to be done by the judiciary—it cannot be done by the Government. The format of court business and how it is run are decisions for the judiciary, although we have encouraged that. We are lucky that both Sheriff Principal Pyle and the Lord President are keen for innovation to happen. Such a pilot would certainly require their consent and possibly their initiative. However, I agree with you that, if we want to have such trials, we need to have a stronger evidence base.

I have been asked why we have not included that in the bill. The reason is that virtual trials are not strictly speaking about Covid—there might be beneficial impacts with respect to Covid, but there are different purposes. I have seen the Parliament get quite annoyed about emergency or exceptional legislation that it does not consider to be directly related to the pandemic. If there is to be a more permanent change, it must be evidenced. We have to work through some of the differences and work with the judiciary. The Parliament can always decide for itself if it wants to make a fundamental change.

There could be more virtual trials under the direction of the Lord President and others, but, in answer to your question, we should have more of an evidence base before we move forward on the matter.

It is worth saying at the start—Mr Greene will understand this, but others who are listening might not—that we are not saying that somebody who has a court case coming up now will have to wait four years for it to be addressed. However, the backlog itself will take four years, in some cases, to be addressed.

I have that confidence based on what the partners that you mentioned, including the Crown Office and the court service, tell me. They have given me the same dates that they have given the committee, and we have analysed them and explored them at some length. Within that, however, there is willingness on everybody’s part to look for other innovative ways in which we can address some of the issues that might stand in the way of a quicker throughput of cases.

Going back to Mr Findlay’s question, I note that we come up against some hard blocks that we will not be able to overcome. Given the number of people who are involved in the process and are delivering the service, there is only so much that we can do through all the different courts that we have mentioned.

I have that confidence given what I am told by justice partners and the discussions that we have had with them, but I fully expect that we will have to find further innovations along the way to make sure that we achieve it.

Part of the explanation for that might be that the 30 per cent figure applies to all releases from prison. I do not know the detail; I have not seen that. It might be useful to hear from Jennifer Stoddart about whether the 40, 50 and 60 per cent figures, and even the 30 per cent figure, are correct.

In relation to short-term prisoners, the release date will have been set as part of their sentencing in the first place. In relation to longer-term prisoners, it will be a decision for the Parole Board, which will have all the different experts to provide the risk assessment at that time.

Perhaps I can provide further reassurance. Everybody has now been made aware of the issue, so all current assessments are being looked at in the light of that. In any event, that will quickly be overtaken by the three-month assessment to which offenders in that situation will be subject. Therefore, even if we had discovered something, the process is starting to bite whereby such matters will be taken into account in future assessments.

Cat Dalrymple, as a former procurator fiscal, will correct me if I am wrong but, with short-term prisoners, the original sentence is handed down by the court, and we do not have the ability to change that.