Chamber and committees

Like Richard Leonard, I welcome those in the public gallery who are former miners and their representatives. As Alex Rowley has just said, this could be an extremely important and historic day for Scotland if we can pass the bill. I hope that we are able to pass it with one voice. We are all here to support justice—that is the whole purpose behind the bill.

As members may be aware, I did not support the amendment that Pam Duncan-Glancy lodged at stage 2 that sought to replace the reference to “supporting or opposing”, which was proposed by me, with a broader reference to “relating to” the strike. The matter was debated in committee, with the outcome that the reference to “supporting or opposing” was added to the bill at stage 2. Her amendment 3 brings the matter to the chamber for debate.

I have again listened carefully to Ms Duncan-Glancy’s explanation of why the form of wording in amendment 3 is preferable to what was supported in the committee and is now included in the bill. I note the member’s point about the bill covering only those who were in support of the strike, but I have discussed that very issue with the president of the National Union of Mineworkers, who is here today, and the union is perfectly comfortable with the new formulation.

A consequence of moving away from exclusively covering pickets, demonstrations and similar gatherings to covering disturbances in the community, as we did at stage 2, is that we need to recognise that people on both sides of the strike could have relevant convictions, remembering that the bill is about reconciliation. I therefore remain concerned that the broader wording that the member suggests is rather vague and might create uncertainty. In turn, that uncertainty could make it harder for people to self-assess whether they qualify for the pardon.

The current reference to “supporting or opposing” makes clear the purpose of the activity that a person was engaged in, participating in or responding to during the miners strike, and personal matters are expressly excluded. I say to all members that, if we are going to have any real attempt at reconciliation, somebody who was against the strike also has to be covered for the same behaviours as those who were for it. As I say, I have discussed the matter with the NUM and, as I understand it, that formulation presents the union with no issues. On that basis, I cannot support amendment 3 and would urge other members to vote against it if Ms Duncan-Glancy presses her amendment.

I turn to Richard Leonard’s amendment 6. Members may be aware that the committee had a cordial and constructive debate on the matter at stage 2. The limited data that was available suggested that, as has been mentioned, there were 16 convictions related to the strike under section 7 of the Conspiracy, and Protection of Property Act 1875, all of which took place in the Strathclyde region. Anecdotal evidence was put forward that similar conduct would have been prosecuted as a breach of the peace in other parts of Scotland. The offence, on conviction, carried a maximum fine of £50 or three months’ imprisonment. There is no evidence that anyone was imprisoned as a result of the convictions.

The conduct that led to such convictions, even if a degree of violence was involved, could therefore be considered to be on the lower end of the scale and similar to conduct that was charged elsewhere as a breach of the peace. I was, therefore, sympathetic to calls for the offences to be included in the bill and had agreed to discuss that further with Richard Leonard ahead of stage 3.

We have, however, subsequently discovered—I have discussed this with Mr Leonard and with Nicky Wilson of the NUM—that the behaviour that was covered by the offence in section 7 of the 1875 act is now covered by an offence in section 241 of the Trade Union and Labour Relations (Consolidation) Act 1992. That means that the criminalisation of that behaviour forms part of the subject matter of the 1992 act, which, in turn, falls within the reservation of

“Employment rights and duties and industrial relations”

under the Scotland Act 1998. If that offence was to be added to the list of qualifying offences, we would make the bill vulnerable to a challenge—and not just a theoretical challenge—on the basis of its legislative competence. If that happened, it could risk delaying the bill’s commencement and the coming into force of the pardon for everyone affected. I am relatively confident that no member would wish to see that outcome, given that the bill will commence the day after royal assent if it is passed later today. However, I realise that that will be disappointing for those who support a more comprehensive pardon.

I have already informed Mr Leonard that I will explore whether the offence can be added to the legislation later, through a section 104 order under the Scotland Act 1998. However, that would require the consent of the United Kingdom Government to progress an order through the UK Parliament on our behalf. Therefore, matters that touch on compensation, which we will come to shortly, and on the Conspiracy, and Protection of Property Act 1875 constitutionally fall to the UK Government.

That does not mean that nothing can be done, but I feel that a more persuasive case could be made on both of those matters if we could come up with a common approach with the UK Government. I have already written to UK Government ministers, and I hope to meet them to discuss those matters. However, for the purpose of the debate, I am unfortunately unable to support amendment 6, and I urge other members to vote against it if the member elects to move it.

I have one thing to say. Although the bill includes a number of temporary changes, this would be a permanent change. However, as I have been trying to explain, the whole situation is under review through the hearings system working group that I have mentioned.

Amendment 1003 agreed to.

Section 38 agreed to.

Schedule—Temporary justice measures

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.

The committee considered the emergency prisoner release power during stage 1. It is clear that some stakeholders support that power; I note in particular that the chief executive of the Scottish Prison Service, Teresa Medhurst, stated that the use of the power in May 2020 enabled the Prison Service to manage the risk and spread of infection in prisons at that time by increasing the single-cell occupancy rate.

It is clear that others had some concerns, including around the provision of information to victims. Certainly, if we were to ever use the power again—I stress that I am not aware of any current plans to do so in general—we would want to learn from the experience in May 2020 and ensure that improvements to the process were put in place. That would include improved communication with victims.

Ensuring the security and good order of our prisons and the health and safety of prisoners and prison staff is absolutely critical and is a responsibility that the Prison Service and I take very seriously.

The emergency prisoner release power—which I remind the committee has been used only once by the Scottish Government since it was introduced under the Coronavirus (Scotland) Act 2020—is intended to support that essential principle by providing a means to release groups of prisoners if the impact that coronavirus is having, or is likely to have, puts the security of prisons or the safety of prisoners or prison staff at risk.

As I have already said, the Scottish Government has no current plans to use the power again, but we have all seen how unpredictable coronavirus and its variants can be and the significant impact that coronavirus outbreaks have on the prison regime. Retaining the provisions allows action to be taken immediately, which could save lives and allow the continued safe operation of our prisons. That is what we are talking about: saving lives and looking after the health of the individuals involved.

Unlike the UK Government, the Scottish ministers currently have no legal power to instruct early release to protect the safe operation of prisons for any other reason. I am grateful to Mr Findlay for the clarification that he is talking only about the Scottish ministers. I will leave open the question of why that is a power that can easily be exercised without objection by UK ministers, but not by the Scottish ministers. It is my responsibility to look after the Scottish Prison Service, which is why we are seeking the powers.

That is a question for each individual involved in the process. All that I would say is that, as has been mentioned already, the question of what further action is to be taken is down to the fiscal. I cannot stand in the place of the fiscal.

It is also true to say that, recently, there was a case in which no further action was taken in relation to around £4 billion of business support—the support that was set up under the Coronavirus Act 2020—being fraudulently claimed. Fulton MacGregor made the point that lines have to be drawn. Governments must decide where those lines are drawn. I would not have drawn that line in that case.

However, the decision as to whether to pursue a case further is one for the fiscal, and I do not want to get involved in fiscals’ areas of responsibility. As I have said, the measure allows for a greater range of cases to be dealt with.

I ask the committee to reject amendments 1037 and 1039.

Amendment 1038 seeks to restrict usage of fiscal fines, following the increase in the maximum value of fiscal fines to £500, to offences for which fiscal fines were already an option prior to the increase. I assume that that is intended as an alternative to amendments 1037 and 1039, which would remove the new upper limit.

However, it is a long-standing part of criminal procedure, dating back to the mid-1990s, that fiscal fines are available for use by the Crown Office, subject to the general restriction that they can be used only for offences that are capable of being tried summarily. That did not change at all in the Coronavirus (Scotland) Act 2020. As such, as a matter of law, no offences are now capable of receiving a fiscal fine for which fiscal fines could not be used prior to the 2020 act. The one exception to that is any offences that have been created since April 2020, and that would include coronavirus-related offences.

The first limb of amendment 1038 would have no meaningful practical effect. The second limb would require the Crown Office to provide the Scottish ministers with details of offences in relation to which fiscal fines were used prior to the increase to £500. It is not clear to me what use the Scottish ministers are to make of that information. It is perhaps intended to support consideration of how the intended effect of the first limb of amendment 1038 is to be monitored. However, it is constitutionally inappropriate for the Scottish ministers to be required to assess independent prosecutorial decision making in the manner that might be suggested by the amendment. More fundamentally, because no meaningful practical effect would be achieved by the first limb, that makes the second limb redundant.

Throughout the pandemic, the Crown Office provided the justice committees with regular detailed reports on the usage of its fiscal fine powers. The Crown Office is happy to continue to provide such information as might be sought through, for example, correspondence or parliamentary questions.

I might get Mr Down to add to this answer. That dialogue with the UK Government is not yet finished. There is still more work to do.