Chamber and committees

I am pleased to speak to this group of amendments, which deals with electronic attendance at court. I commend the justice agencies on the record for their urgent, effective and collaborative work over the past two years. Virtual hearings are one measure that has enabled them to respond to the challenges that the pandemic has caused, and the extension of those measures is an important part of the justice system’s recovery.

I do not support Katy Clark’s amendment 78, which would require ministers to prepare and lay regular reports

“setting out the progress that is being made in the implementation of virtual courts.”

That would not be a temporary provision; it would be a permanent one that remained on the statute book even after all the provisions on virtual court attendance in the bill had expired. There are already avenues for members to obtain such information, such as parliamentary questions and the committee system, and I am pleased to confirm that we are working with the court service to agree an approach to the publishing of regular data to improve the evidence base on virtual trials. I mentioned that at stage 2. I will be happy to update the Criminal Justice Committee on that in due course. I therefore invite Ms Clark not to press her amendment 78.

I turn to my amendments in the group. Government amendments were agreed to at stage 2 to make it the default position that people who are appearing in court on undertakings will attend court in person, which matches what has been happening in practice. I told the committee that, in the run-up to stage 3, we would continue to consult justice partners on whether it would be beneficial to make other types of hearing in person by default.

Many types of hearing in the criminal courts are largely being held in person, and it makes sense for the default positions in legislation to reflect that operational reality. However, some types of hearing are predominantly calling virtually—for example, preliminary hearings in the High Court—and we do not want to undermine those arrangements. The courts also require flexibility, which has proved to be crucial in their response to the pandemic. We have been working closely with partners to try to find the best way to balance those considerations.

My amendments 15, 16, 21 and 22 are designed to do two main things. First, they will make almost all hearings in criminal cases in person by default. Civil proceedings are not affected. Secondly, they will enable the Lord Justice General to make determinations that suspend the requirement for physical attendance for particular groups of people or particular classes of criminal hearing. In other words, the default mode of attendance for those people or those hearings would become virtual.

For instance, the Lord Justice General might determine that virtual attendance should be the default for preliminary hearings in the High Court or when a person has Covid, or a determination could be used to support pilots of virtual hearings in specific parts of the country. Those are just illustrative examples; the decisions will be a matter for the Lord Justice General. However, that power to make determinations could not be used to make trials virtual by default.

Whether the default is physical or virtual attendance, courts and tribunals will have the flexibility to override the defaults in individual cases as long as they are satisfied that that will not jeopardise the fairness of proceedings or the interests of justice. Where the default is virtual attendance, a person will still be able to request an in-person hearing. Any determination that the Lord Justice General makes under the provisions must be made publicly available, so members will have a clearer picture of where and when virtual hearings are being used.

I know that Pauline McNeill has been particularly concerned about custody hearings being held by videolink. I hope that, rather than moving her amendment 79, she will support amendments 15 and 21. As I said, they will make almost all hearings in criminal cases in person by default, including custody hearings. The door is being left open for the Lord Justice General to determine that custody hearings should become virtual by default, at least in some circumstances. I think that that is a good thing. Greater use of technology in our courts has the potential to improve the experience and processes of hearings, and we should allow latitude for testing that.

I hope that Pauline McNeill will be reassured by the safeguards that I have outlined. I have no doubt that she and her colleagues on the Criminal Justice Committee will keep a careful eye on developments, and I very much welcome that.

My amendments 19, 20, 23 and 24 make changes to how courts and tribunals consider representations and issue directions in relation to a person’s mode of attendance. The changes apply to both civil and criminal proceedings. The bill as introduced called for parties to be given an opportunity to make representations about the mode of attendance before any directions about it were issued. However, practical experience has shown that, in some contexts, the first opportunity for parties to make representations can be at, rather than before, the first hearing in a case. In other cases, it is simply more efficient to let the court or tribunal first propose how attendance should take place, because it then only has to spend time dealing with any objections to that proposal.

The amendments therefore enable a court or tribunal to direct a person on how to attend a hearing, whether in person or virtually, without first giving parties the opportunity to make representations. They put the court or tribunal under a legal duty to ensure that the parties are aware of their right to challenge the mode of attendance that is proposed by the court, and to deal with any such challenge before turning to the substantive business of the hearing. If a court or tribunal upheld a challenge to proceeding virtually or in person, the hearing would be adjourned and rearranged accordingly.

Finally, amendments 17 and 18 in my name are minor technical corrections. They ensure that tests that are designed to be applied when courts or tribunals override an in-person or virtual default rule apply only to the overriding of the rule and not to decisions that would have the effect of reverting back to the default.

I hope that members across the chamber will support my amendments.

I seem to have enlivened the Labour group, which is good to see.

I am disappointed that some members remain of the view that the current bill process should not be used to enact key public health and education continuity powers now, ahead of the temporary legislation expiring in September.

We also heard that the Government should not act in advance of the conclusion of the public inquiry. I think that we all agree that the public inquiry must be independent and that we cannot fix its timescales. I know in my heart that, if we were to say that we will do nothing just now and that we will wait until the end of a public inquiry, we would be attacked by the Labour Party for sitting on our hands and doing nothing about the situation.

In relation to the current bill process, Professor Fiona de Londras, who was mentioned by Murdo Fraser, has said:

“There is significant scope for public and parliamentary involvement. The bill is a product of a meaningful pre-legislative scrutiny and consultation process. MSPs have been given plenty of time to prepare for the legislative stages. The robust treatment of the bill through this ordinary process is very welcome.”

I agree with the Deputy First Minister that digital public service reforms should not disadvantage service users who cannot, or prefer not to, use digital means. We absolutely recognise that some people cannot or do not want to use technology to access services, and we remain committed to offering alternative options. We are also working with partners to support connectivity across Scotland and to minimise the risks of digital exclusion. However, it is important to emphasise, as the Deputy First Minister has said, that nothing in the bill as amended precludes in-person or paper-based services.

The bill’s education provisions are based on our experience of the Covid pandemic. Ensuring continuity of education for children and young people, and students, is at the heart of the measures. The Government is committed to continued engagement with education stakeholders as we implement the bill’s provisions.

The debate on the rent freeze amendment was important. The Government is committed to doing what it can to tackle such issues in ways that are workable and robust. I am very grateful to Ross Greer for the interventions that he made; he put some facts into the debate.

The bill supports Covid recovery in the justice system and the Government’s Covid recovery ambitions more widely. Ministerial colleagues and I have listened to stakeholders, Opposition MSPs and scrutiny committees, and the bill has been improved in the amending stages in the ways in which the Deputy First Minister set out earlier. I have made it clear that engagement on justice system reforms will continue and that there will be further justice bills in this parliamentary session. The most significant public health and education powers in the bill are now subject to additional strong parliamentary safeguards, including, but not limited to, the gateway vote mechanism.

As the Deputy First Minister said, there are provisions in the bill that can be supported by all members, and there is no reason why they cannot be supported by all members and all parties.

That being so, and as the Cabinet Secretary for Health and Social Care said in the stage 1 debate,

“I invite the Parliament to vote to learn the lessons of the pandemic, to complete the statute book and to put in place that preparedness for whatever challenges may come in the years ahead.”—[Official Report, 12 May 2022; c 117.]

Most of the amendments in this group were debated extensively at stage 2, when the Criminal Justice Committee explored the various issues in detail.

Amendments 74 and 75 seek to expire certain time limits automatically one year after the bill receives royal assent. As I said at stage 2, we simply do not yet know what the situation will be with the backlog of cases in the summer of 2023. If those amendments are agreed to, the time limit extensions relating to remand cases would expire no matter what the scale of the backlog of cases was at that point.

I have similar concerns about amendments 82 to 85 and 87 to 91, in the name of Katy Clark, and amendment 86, in the name of Pauline McNeill. They all seek to reduce the length of the extensions to time limits provided for in the bill and are almost all the same as amendments that were debated extensively at stage 2, during lengthy debates. I cannot support pre-emptive attempts to reduce or expire extended time limits if such action would significantly adversely affect the time and resources for progressing trials.

The temporary time limit extension provisions are not the cause of the backlog. Extensions to the time limits help to ensure that scarce prosecutorial, court and defence resource is not diverted to having to prepare and adjudicate on large numbers of applications to extend the statutory time limits case by case. For that reason, I ask Ms Clark and Ms McNeill not to move amendments 82 to 91.

Amendments 76 and 77, in the name of Pauline McNeill, are new amendments that have not been discussed during scrutiny of the bill. They would require courts to record who applies for extensions to certain time limits in criminal cases and why. They would also require the Scottish ministers to report on that information every six months in perpetuity.

In any individual case, there might be a host of interconnected reasons why the prosecution or the defence might not be ready to proceed with a trial in line with the statutory time limits. The exact wording of amendment 76 is that

“the reason for the application”

should be noted. That duty could be fulfilled through recording that the case was not ready to proceed to trial, which would not provide helpful information. If the whole procedural history of the case was recorded each time that a time limit extension was granted, that would place a significant and undue additional administrative burden on the court service.

My officials have been in touch with the Scottish Courts and Tribunals Service, which has advised that however amendments 76 and 77 are interpreted, they would have a significant resource impact on the operation of the courts. In particular, they would add to the burden faced by court clerks by requiring them to record new information, and they could require changes to information technology systems. That would happen at a time when it is important that the justice system’s resources are fully focused on tackling the backlog of cases. I ask Pauline McNeill not to move those amendments.

Amendments 80 and 81, in the name of Russell Findlay, retread ground that was extensively debated at stage 2. They would end the temporary increase—from £300 to £500—to the upper limit of fiscal fines. That increase, which has been in force since April 2020, has freed up the courts and prosecutors to deal with more serious cases, easing the burden at a time of significant resource pressure as justice agencies deal with the backlog that has built up during the pandemic.

Fiscal fines have been part of the Scottish justice system since the mid-1990s. Independent prosecutors are able to use their discretion in deciding whether it is in the public interest to offer a fine as an alternative to prosecution. They are a tool that can be used by prosecutors to relieve the pressure on the courts by allowing less serious offences to be dealt with without taking up valuable court time.

Rightly, members have expressed concerns about the backlog of cases in our courts. This is not the moment to remove a measure that is aimed at tackling that backlog. Indeed, due to inflation, to revert to the previous maximum level of £300 would make fiscal fines less effective in diverting cases away from prosecution than they were when the Parliament approved that £300 maximum in 2007. At this time, given the backlog in the criminal courts, that would be counterproductive.

Retaining the maximum level of fiscal fine at £500 for a further temporary period remains an important part of our justice system’s on-going recovery from the impacts of the pandemic, and I ask members to reject amendments 80 and 81.

I wonder whether Alex Rowley, being a former council leader, remembers, as I do, compulsory competitive tendering, private finance initiatives and the ring fencing that went on under a previous Labour-Liberal Democrat Government and, prior to that, the Tory Government.

On a point of order, Presiding Officer. The app is getting a bit tired. I would have voted yes.

I am pleased to support Jamie Greene’s amendments 13 and 14. The Government is committed to continuing to engage with justice partners and victims’ organisations on the temporary justice measures in the bill. Amendment 13 would embed a statutory duty for ministers to consult as part of considering whether to extend these temporary measures.

The bill already requires that, if ministers seek to extend the expiry date of the temporary justice measures in the bill, they must provide Parliament with a statement of their reasons for an extension. These amendments would strengthen that requirement by requiring that the statement of reasons must include a summary of the consultation and the findings of the review. I therefore welcome the amendments, which would enhance Parliament’s ability to scrutinise any extensions effectively.

Amendment 13 agreed to.

Section 42—Regulations under this Part

Ensuring the security and good order of our prisons and young offenders institutions and the health and safety of both those detained in them and those who work in them is absolutely vital. It is a responsibility that I take extremely seriously. The emergency prisoner release power—which, I remind the Parliament, the Scottish Government has used only once since it was introduced under the Coronavirus (Scotland) Act 2020—is a way of meeting that important responsibility. The Scottish Government currently has no plans to use the power, but we have all seen how unpredictable the coronavirus and its variants can be and the significant impact that coronavirus outbreaks have on the prison regime.

Without these temporary provisions, we would be required to introduce emergency legislation if the impact of the coronavirus placed the security of our prisons or young offenders institutions at risk. Even emergency legislation would take time that we could not afford. For those reasons, the Government is opposed to Russell Findlay’s amendment 92.

Amendments 93 and 95, in the name of Jamie Greene, seek to provide that victims be notified before prisoners are released under that mechanism. I agree that ensuring that victims receive clear and appropriate information about prisoner release is critical. Indeed, that is why the Government is legislating to extend that provision to victim support organisations under our Bail and Release from Custody (Scotland) Bill, which is proposed to take over from the extended temporary provisions in the Coronavirus (Recovery and Reform) (Scotland) Bill.

The regulations for the May 2020 early release process extended the remit of the victim notification scheme to include prisoners released under that mechanism. That meant that individuals who were registered with the scheme would be informed if the prisoner that they had registered to be notified about was to be released early. We intend to take that bespoke approach should the power ever be needed again.

The drafting of amendment 93 appears to require ministers to notify anyone registered with the victim notification scheme of the release of prisoners, but it is not specific about which prisoners or which victims should be notified. The drafting is so wide that it would mean that every victim who had registered with the notification scheme would need to be notified, not just the victims of prisoners who stood to be released under the emergency mechanism. That seems to risk unnecessarily retraumatising people, although I cannot believe that that is the intention behind it.

It is not my or the Government’s responsibility to correct an incompetent amendment. I have laid out what we think our approach should be. We think that that is the right approach, so why would I want to amend Jamie Greene’s amendment 93 if I do not agree with it in the first place?

I could be corrected, but I am sure that I said the same thing at stage 2. If we were to follow amendment 93, we would have to notify every victim who had registered with the scheme on the release of any prisoner. That cannot be what Jamie Greene intended. It is not my fault if that is the impact of the proposed amendment.

Amendment 93 also fails to provide an important safeguard on the sharing of information about prisoner release. The legislation underpinning the victim notification scheme provides the Scottish ministers, as the Scottish Prison Service, with a discretion not to share information with a victim who is registered with the notification scheme in certain circumstances. That discretion is, in part, to protect the human rights of the prisoner being released where they may be at risk from retaliatory attacks following release. Amendment 93 does not give the Scottish ministers such a discretion and, therefore, does not provide for that necessary safeguard.

For those reasons, the Scottish Government cannot support amendments 93 and 95, and I ask Jamie Greene not to move them.

Amendment 94, in the name of Russell Findlay, seeks to exclude individuals who are serving sentences of more than 12 months from emergency release. That is a sweeping and arbitrary exclusion, which I do not support. It would significantly reduce the effectiveness of the emergency release power—which is probably its intention—as a mechanism to manage the prison population in the face of a serious threat to security and good order caused by a deadly virus.

The bill as introduced included restrictions on the categories of prisoner who could be released under the emergency release power. I have been pleased to work with Russell Findlay and Jamie Greene to lodge amendments to impose further specific restrictions that are sensible and proportionate. They are considered and proportionate safeguards. The blanket exclusion from emergency release of anyone sentenced to more than 12 months, regardless of the offence, is not. I urge members not to support amendment 94.

Amendments 26 to 28, in my name, will place further restrictions on how the early prisoner release provision will operate. Those amendments give effect to proposals made by Jamie Greene and Russell Findlay at stage 2.

Amendment 26 restricts the use of the early release power so that it can be used to release prisoners with only six months or less of their sentence left to serve. Amendment 28 is consequential on amendment 26.

Amendment 27 excludes individuals who are serving sentences for offences under the Domestic Abuse (Scotland) Act 2018 and the Domestic Abuse (Protection) (Scotland) Act 2021 from release under the early release provision. It gives effect to a proposal from Russell Findlay at stage 2 but goes further by also excluding from emergency release individuals who are serving sentences for offences with a domestic abuse aggravation under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.

I invite members to support the amendments in my name.

I believe what I said to be true. I do not think that the Conservatives ever had any intention of supporting the bill in its final form. I believe that to be the case.

In relation to the Labour Party, it is unbelievable to hear somebody try to rewrite history. The Labour Party has a history of centralisation, of PFI, of compulsory competitive tendering and of local government ring fencing. Those of us who lived through it know that that is the real history.

In relation to the point about changing PFI to public-private partnerships, I remember putting forward a bid for a trust model to build three new houses, but the Labour Party turned it down and said that PFI must be used. That PFI legacy lives on in councils throughout the land through the debts that they face because of the Labour Party. More than 30 per cent of our funding from the Labour Executive was ring fenced. That is what Labour did in terms of centralisation, so forgive me if I do not take too seriously some of the points that Labour members made on centralisation. They should remember their past.