Justice Committee

Meeting date: Tuesday, January 21, 2020

Official Report 692KB pdf

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Subordinate Legislation

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Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2020 [Draft]

Agenda item 2 is consideration of an affirmative instrument. I welcome Humza Yousaf, the Cabinet Secretary for Justice, and his officials: Philip Lamont, who is head of the Scottish Government’s criminal law, practice and licensing unit, and Douglas Kerr, who is a legal adviser at the Scottish Government’s legal directorate.

I refer members to paper 1, which is a note by the clerk. I also refer members to the late submission from Police Scotland. I invite the cabinet secretary to make a short statement on the instrument.

Thank you, convener. Please accept my apologies for the delay in getting to the committee meeting this morning. Thank you for rearranging some of your agenda to allow me to come at a later time than scheduled in order to speak to this draft affirmative order. I will briefly explain the policy behind the order, and then I will explain what the order does. After that, I will be happy to answer any questions that members may have.

The overall policy objective is to ensure that the backgrounds of constables, potential constables, police custody and security officers and armed officers are appropriately vetted in Scotland. It is of course important to maintain public confidence in the integrity of those undertaking such roles. The order provides increased flexibility for Police Scotland, and other police forces operating in Scotland, to use a greater range of information relating to a person’s previous offending behaviour when they are being vetted.

That will aid the decision-making process in relation to the appointments for such roles, as well as decisions made in relation to disciplinary proceedings against serving constables. Ultimately, it is to ensure that those who wish to serve as constables and police custody and security officers are fit to serve, and to ensure that constables continue to be fit to serve. It will also mean that the vetting of armed forces police will be treated in the same way in Scotland as it is in England and Wales.

In more detail, the order will allow all spent convictions that are received at any age, and all spent alternatives to prosecution when a person was aged 18 or over, to be considered as part of disciplinary proceedings against a police constable who is appointed after the date of commencement, and also in disciplinary proceedings against an existing police constable for convictions or ATPs given on or after the date of commencement. It will also allow all spent convictions received at any age, and all spent ATPs given when a person was aged 18 or over to be considered when vetting constables, police custody and security officers, persons appointed as police cadets to undergo training with a view to becoming constables and naval, military and air force police.

There are saving provisions that mean that the changes in the order do not apply in respect of a person whose application for recruitment is being considered at the time when the order comes into force. The changes in the order also do not apply in respect of existing convictions of police personnel. Where the saving provisions apply, the law as it is today will continue to apply.

The Scottish Government has discussed the changes with Police Scotland, which is keen for them to be made. We believe that the policy changes contained in the order reflect the reasonable expectation of the public that those charged with the substantial responsibility of upholding law and order should be held to a higher level of conduct and integrity.

I am happy to answer any questions that members may have.

I am fully supportive of the proposals, but there is a significant “however” to that. Does the cabinet secretary acknowledge that, as the proposals stand, they do not recognise the current operation of the Scottish police service? The highest standards will apply to constables and those providing custody arrangements. However, given that support staff are involved in highly sensitive functions such as criminal intelligence, forensics, forensic accounting and information technology, and that there can be direct entry at chief officer level, the order covers only a portion of those who do sensitive work in Police Scotland.

I know that Mr Finnie will understand my views on this, given his experience. I speak with Police Scotland regularly to decipher where gaps may exist and it has told me that, after the changes that were made a number of years ago, certain gaps need to be filled. I think that Police Scotland has directly responded to the committee to say that.

John Finnie’s point is important, and I am happy to take it away and reflect on it. As he suggests, that issue is not something that the order will address, and he is absolutely right about the sensitivity of the information that is available to support staff. However, it is not only about the sensitivity of information. The reason why it is important to introduce the measure for constables and the others who I have mentioned is because of the powers that they have—in particular, the warranted powers—which support staff do not have. There are differences, but I am generally happy to reflect on Mr Finnie’s point.

I have a couple of further points to make.

There does not seem to have been consultation. The cabinet secretary says that there have been discussions, but why was there no consultation with the Scottish Police Federation or the Association of Scottish Police Superintendents? Surely, it would be good to get their ringing endorsement. Similarly, there are no impact assessments. A human rights impact assessment would have been an important element of the proposal.

I am satisfied, as is Police Scotland, that the order is within human rights obligations and, in particular, article 8 of the European Convention on Human Rights.

Correct me if I am wrong, but my understanding is that neither of the organisations that John Finnie mentioned has written directly to the committee. They had the ability to do so if they had concerns. Equally, they could have approached me about any concerns that they had about the order, but they have not done so.

12:00  

I would be astonished if they took exception to it. For completeness, do you acknowledge that what has taken place is not consultation? There have been discussions.

There have been discussions, if we are getting into the semantics of it.

From my conversations with the organisations that John Finnie mentioned, I know that they have a shared endeavour in ensuring that the police force has the best people. It is important to say that, if the order is approved, it will not introduce a blanket ban. If somebody has previous alternatives to prosecution or convictions, the order will simply allow those to be part of the consideration. It does not mean an automatic barring from the police service. To get a holistic picture, the order is important. I often have differences with the Scottish Police Federation, but I think that we share a desire to see the best people possible in what is one of the most trusted jobs in the country.

You say that the transitional arrangements will ensure that there is no retrospective application. However, it will be difficult to ensure that that is the case and that, for instance, retrospective reference is not made in some future misconduct hearing.

The saving provisions will help to protect from that scenario. In future, if someone is convicted after the date of commencement, or if there are disciplinary proceedings, of course they can be taken into account at that time. The saving provisions protect people from the scenario that John Finnie mentions.

I am supportive of the order. However, I am interested in exploring what has brought about the need for change. Police Scotland’s background checking and clearance are extensive, so I expect that it would have access to any spent convictions. You mentioned in your answer to John Finnie that there are gaps and those are behind the need for the order. Can you give more detail on the reasons why the change needs to be made?

It is a good question. One of the easiest ways to do that would be to give you an illustrative example, to help to spell it out. Police Scotland was helpful in checking that this illustrative vetting example is accurate—I stress that it is illustrative. Say that an applicant is 37 years of age and that the police information reveals that, at age 17, the individual was convicted under the Criminal Law (Consolidation) (Scotland) Act 1995 for possession of an offensive weapon, and received an admonishment. At the age of 20, they were convicted of perjury and got six months’ imprisonment. At age 21, they were convicted of assault and fined £500. At age 30, they received a fixed-penalty fine for antisocial behaviour and breach of the peace, and the fine was unpaid. At the age of 33, they got an antisocial behaviour and breach of the peace fixed-penalty fine, and again that was unpaid.

All that criminal history that I have just outlined is spent and the convictions are protected. As such, the applicant does not need to disclose any of that history, nor, under the current regime, could the applicant be penalised for it. That is an illustrative example of a considerable criminal history, and none of it can be taken into account because of the changes that the Scottish Parliament agreed to making to the Rehabilitation of Offenders Act 1974 that covered employment as a whole. As I have said, over the years, gaps that are similar to the one that I have suggested became apparent when Police Scotland approached us.

Are you saying that, in the illustrative example that you gave us, the background checks that Police Scotland would carry out might not bring that information to the fore?

My officials can correct me if I am wrong, but my understanding is that the frustration for Police Scotland is that, although it would have access to and know that information from its criminal history databases and the police national computer and so on, legally, because of the decisions that Parliament has made to change the Rehabilitation of Offenders Act 1974, Police Scotland would not be able to use that information in consideration of an application.

We would all agree with that illustrative example. That is just one example; I could give many more. I think that we would all agree that the well-understood threshold that we have for other employment is probably not the correct threshold for employment by Police Scotland.

Are you saying that the information would be available, but that the police would not formally be able to use it as part of the decision-making process?

I am saying that legally—not formally—the police would not be allowed to use it as part of the vetting process. If they did so, they would be contravening the law as passed by Parliament.

I should say that there are checks and balances. I look to my colleagues to correct me if I am wrong but, if somebody is rejected by Police Scotland, they can appeal the decision and it can be looked at again by a senior officer to check whether all the consideration that took place was appropriate. Potentially, there could be a legal challenge if the police had used such information.

If somebody was rejected and they believed that they could demonstrate that Police Scotland had used such information to inform the decision to reject them, there might be an issue.

Potentially.

As John Finnie and James Kelly have done, I confirm that I am supportive of the proposed changes.

To an extent, cabinet secretary, you have already addressed the issue of the proportionate use of the power, which I had intended to ask about. Although we are not talking about people automatically being debarred, the lack of prior consultation is regrettable, as John Finnie highlighted. You are absolutely right that the Scottish Police Federation and others could make representations, but leaving it up to organisations that might have concerns to spot that secondary legislation is coming through and raise concerns with the committee does not appear to be good practice.

You have said that you will reflect on the matter, and I strongly encourage you to do that, because an assumption appears to have been made that everybody is on board and therefore that due diligence has been done. We will see how the measure is applied. It is true that there is an appeals process but, given the potential human rights implications, that due diligence could probably have been done better.

I take the points that Liam McArthur and John Finnie have made in the spirit in which they were intended. We will reflect on those points.

I am not in a position to argue with the list of offences that you outlined, but I am sure that that is a very extreme example. Would such a criminal history not already be picked up?

Paragraph 65 of the Government’s memorandum on the order states:

“Further, all their decisions are recorded; applicants who are refused vetting are informed of the reason for this (where police operations and the data protection rules allow)”.

That is an important caveat. The reality is that, as with refusal on the grounds of criminal intelligence, the reason for refusal would not be disclosed to the applicant. If they had a string of convictions, the police would just decide that they were not suitable because of their conduct, and that would be the end of it.

I support the tidying-up exercise that is proposed, but I think that the Government is gilding the lily a bit.

Although I am not from the legal profession, I recognise that any potential for legal challenge needs to be addressed. In the scenario to which John Finnie refers, all that it would take would be for one applicant to think that they had been discriminated against because of an alternative to prosecution. I can see scepticism in Mr Finnie’s eyes. However, it would take only one such case.

As someone who has been a minister for seven and a half years, I say to Mr Finnie in all seriousness that, whenever there is a vulnerability that means that there is a possibility of a legal challenge, it is a minister’s responsibility to tidy up the legislation, where that is appropriate and necessary. I would not necessarily disagree with Mr Finnie’s assessment of the order as a tidying-up exercise, but I think that it is necessary and I look forward to receiving his support for it.

Agenda item 3 is formal consideration of the motion on the draft Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2020. If necessary, we can have a formal debate on the motion. The Delegated Powers and Law Reform Committee has considered and reported on the order and had no comment to make on it.

I invite the cabinet secretary to move motion S5M-20332.

Motion moved,

That the Justice Committee recommends that the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2020 [draft] be approved.—[Humza Yousaf]

Motion agreed to.

We will have a brief suspension to allow for a change of Government officials.

12:10 Meeting suspended.  

12:11 On resuming—  

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Restriction of Liberty Order etc (Scotland) Amendment Regulations 2019 (SSI 2019/423)

Agenda item 4 is evidence on a negative instrument. I refer members to paper 2, which is a note by the clerk.

The Delegated Powers and Law Reform Committee considered the regulations at its meeting on 7 January and agreed to write to the Scottish Government to ask for more details on why they were brought into force just three days after they were laid, thereby breaching parliamentary rules. Details can be found in annex A of the clerk’s paper and in the response from the Cabinet Secretary for Justice at annex B.

I welcome back Humza Yousaf, Cabinet Secretary for Justice, and his officials. Graham Robertson is the Scottish Government’s electronic monitoring policy manager, and Craig McGuffie is a principal legal officer. I invite the cabinet secretary to make some short opening remarks.

As members probably know, there is an existing legislative requirement for Scottish ministers to prescribe the equipment that can be used for electronic monitoring. We are obliged to specify that equipment in a Scottish statutory instrument as one of the stages of parliamentary oversight of the electronic monitoring service. In practice, we discharge the obligation by setting out in regulations a brief description, with, as members can see, the model numbers and equipment that can be used.

We always intended to produce regulations in January 2020 as a result of the introduction of new equipment in the forthcoming new electronic monitoring contract. This was a planned stage in preparation for the five-year contractual period. Before Christmas, however, we had to move to prescribe equipment faster than we had initially planned to, and we brought forward the regulations in breach of the 28-day rule. That was driven by the increased number of court orders that G4S was receiving for which there had to be electronic monitoring. At the time, we saw the highest level that we had ever seen in Scotland of electronically monitored court orders, such that, even with the decrease in the number of home detention curfew licences, which are monitored, there was potential pressure on equipment stock levels.

Our acting to prescribe a broader range of equipment meant that the stocks of new equipment that G4S had ready and waiting to deploy for the new contract would be used earlier, in conjunction with the current equipment. We believe that acting to prescribe that equipment was necessary and that it was a prudent contingency to ensure continuity in this important service, particularly in light of recent changes to HDC.

The regulations have no impact on the move towards the introduction of GPS. They do not enable any equipment to be used for GPS at this stage; rather, they allow for a slightly updated set of home monitoring units and tags with different model numbers to be deployed to carry out the same radio frequency monitoring that already takes place.

As the convener said, the regulations are subject to the negative procedure, which requires an instrument to be laid before Parliament at least 28 days before it comes into force. In order to bring the regulations into force ahead of the Christmas recess, we had to breach the required 28-day period. There is precedent for such an approach to be taken where there is a pressing reason for it. Of course, a breach of the 28-day rule does not affect the validity of the regulations, and the committee has a 40-day period in which it can annul them.

We wrote to the Presiding Officer to explain why we were unable to lay the regulations 28 days prior to their coming into force and, as I said, we informed the committee. I am more than happy to take questions from committee members on the regulations.

12:15  

I understand the case that you make, cabinet secretary, but it is a question of parliamentary oversight. The DPLR committee says that it is

“still ... unclear when exactly the Government were made aware of the potential shortage”.

Are you able to help the committee understand when precisely before recess the Government became aware that there would be a shortage, and how much time elapsed after that date before it first informed Parliament of the situation?

I must correct Liam Kerr on a couple of points. First, there is no shortage of stock. The stock was supplied by G4S, but staff were unable to use it because the model numbers were not prescribed in regulations. The new regulations include the updated unit numbers.

I have been told about the technology and why the new tags are different from the tags that are currently used. They are not new technology—they do not use GPS technology per se. There is no shortage. The issuing of court-mandated restriction of liberty orders was at its highest-ever level, and we faced a situation in which, although the stock was in place, the model numbers of the devices were not prescribed in an existing SSI—as members can see, the SSI that is before them literally specifies the unit and model numbers—so G4S staff were unable to use them.

In answer to Liam Kerr’s substantive question, I have here a table that shows the percentage change in the number of individuals who are under the electronic monitoring regime. The number of those under home detention curfew in November, December and January remained relatively static, in the 30s. The largest increase came as a result of court-mandated RLOs, where there were increases of 4.1 per cent in November and 7.4 per cent in December.

Forgive me—I know that the committee is tight for time. My question is simply this: do you recall when you were made aware of the potential shortage?

I am getting to that. My point is that the changes that I described started to become known in November and December. A submission was sent to me on 10 December seeking to have the regulations brought forward and laid on 17 December. We laid them on 17 December, and they came into force on 20 December.

I should say that officials had a regular contract meeting with G4S in mid-November. It was at that meeting that they were told that it looked like there was already an increase in November. Of course, it was prudent to wait and see whether that increase continued for the next few weeks. It did, which is why, in early December, I received a submission seeking to have the regulations laid sooner.

Again, I emphasise that that approach was prudent. I do not accept that there has been any attempt—as has been spun by members, Liam Kerr included—to evade parliamentary scrutiny. As I said, I am happy to appear before the committee, which is of course able to annul the regulations in the 40-day period if it wishes to do so.

Thank you. I am not sure that I suggested that you were attempting to evade parliamentary scrutiny; I appreciate that you have come forward to address the matter. Perhaps we can discuss that another time.

You told the DPLR Committee that the increase was unexpected, and I understand the argument that you have put forward. However, by way of example, I highlight that the presumption against short-term sentences was brought in last summer. One would have thought, given that the stated aim of that legislation was to increase the number of people who are out on electronic monitoring, that if that legislation was effective, there would be more people coming out and requiring these pieces of equipment. Was the situation therefore entirely unexpected, or could it have been better planned for?

Again, I go back to the figures. To some extent, the substance of what you say is not incorrect: that the introduction of a presumption against short sentences would lead to a potential increase in the use of alternatives to custody. However, I have two points to make. First, we can look at the months immediately following the introduction of the presumption against short sentences. Although we saw an increase in August, September and October, it was nowhere near on the same scale as the increase that we saw in November and December. There was a much higher increase during those months.

It is really a question of a prudent balancing of risk. We knew that revised HDC guidance was coming through. HDC numbers are still low—there are 29 people on HDC this week. However, there was a concern that if the numbers continued to grow over the festive period at the rate that they grew in November and December, and if the revised HDC guidance made a significant difference to the numbers—which it has not yet done—we could be in a position where G4S’s stock, which would be needed, could not be used. I do not think that we could have predicted the increase in November and December. That is potentially something for us to reflect on in the future.

However, when we choose to commence certain provisions in the Management of Offenders (Scotland) Act 2019, we will not have to go through the process of prescribing the serial and model numbers in the future. I hope that we will not be in this position again.

I am supportive of the regulations and welcome the number of court-mandated restriction of liberty orders. I am interested in schedule 2. Was it a requirement of the contract that the company that won the contract should provide its own equipment?

I may look to my officials to answer the question about the discussion that took place when the contract was awarded on the type of equipment that would be used. I reiterate that the equipment is not a new type of technology. Having asked about the technological difference between what is being prescribed in the new regulations and what is in other regulations, my understanding is that the new regulations simply prescribe an updated version of the equipment—for example, the frequency that it uses can go through thicker walls.

I am very cynically trying to see whether there is any likelihood of the situation happening again. What is the lifespan of a tag? Do we know?

I could not tell you off the top of my head.

The regulations prescribe several different bits of equipment. The tags last for a good few months before the battery expires and they have to be swapped out. The home monitoring units are plugged into a power source, so their lifespan is a bit longer.

Is it longer than the duration of the contract?

Yes, home monitoring units are able to continue between contract periods.

If the contract is renewed—if the work is not taken back into the public sector, which would be a fine idea, cabinet secretary—will the fact that G4S Monitoring Technologies manufactured the equipment and devices influence the contract decisions?

No. When we take the tenders forward, it will be for those bidding to demonstrate that they will be able to provide the necessary equipment. There are no favours given to any company. A company will not be looked on favourably just because they can supply their own equipment. I will pass over to my officials, who have more knowledge of the contract.

During the procurement exercise, we set out the standard to which the equipment must be manufactured and providers come forward and bid for the contract. Some bidders supply the equipment in-house and others partner up with other people to supply it. We are looking for both the service and the equipment.

Can you explain why regulation 2(2)(b) says:

“omit the entry for ‘Serco Geografix’”?

That removes equipment from the previous contract. Prior to 2013, Serco provided the equipment. That is when the regulations were updated.

Is there a relationship or connection between the holder of the contract and the equipment that can be used in that contract?

Yes.

Does that answer your question, Mr Finnie?

No, convener, it does not. That means that it is a contractual requirement that the company that provides the monitoring service also provides the equipment.

They must provide equipment to do the monitoring, but they do not have to produce it in-house and can partner up with other people to provide it. In this case, G4S provides the equipment and the service.

When I was Minister for Transport and the Islands, we expected that, whether a contract related to the railway or ferries, companies would have all the necessary equipment to bid for and successfully run that contract. I am struggling to see where this one—

Maybe not, given that you have train-leasing companies. I am trying to establish—

Let the cabinet secretary finish. Cabinet secretary, please be brief. We have fallen behind and have another important panel to hear from. If everyone could be brief, that would help.

It would be helpful if John Finnie could get to the crux of his concerns, so that we can address them.

Is the entry for Serco Geografix omitted because it is obsolete or because there is a new contract?

Serco has no role in the current contract, so the legislation has been updated to remove equipment that is no longer used.

Thank you. Perhaps I will write to the cabinet secretary on that point.

That is appreciated, Mr Finnie.

Cabinet secretary, for three reasons, I do not accept your explanation that you could not have foreseen the circumstances that required the regulations to be brought before Parliament earlier than planned. As has been mentioned, the presumption against short-term sentences was coming into play. In your letter, you indicate that, in December, administrative changes to HDC were coming in, which would increase the number of people released on HDC. Further, if we look at the trend through August, September, October and into November, the table provided shows increases in HDC. There are three clear reasons for an increased trend. It is a glaring oversight that, with all that evidence in play, you and your officials were not able to anticipate that the regulations would require to come before Parliament earlier.

Mr Kelly’s attempts to spin the situation into being the result of our lack of foresight is mistaken for a number of reasons—largely down to his misunderstanding of a few of the things that he mentioned. I will take them one by one.

I already mentioned the point about the presumption to Liam Kerr. The table that I provided demonstrates that, compared with the previous months, the increase in November and December was unprecedented.

There are two further substantial and important points. The table that I provided also disproves James Kelly’s HDC theory. In every month from April, the HDC trend decreases. From October to November, there is a slight fluctuation of two, from 36 to 38. However, HDC levels remain at among the lowest levels that we have seen since the regime came into place. That disproves his theory that we should have had that foresight because of changes in HDC. HDC numbers in November and December were far lower than they were in July, August or September. The trend was decreasing—not increasing—so he is wrong on HDC.

There is, at best, ignorance of how the contract works. It would not have made sense to bring in the regulations before the award of the contract. Is James Kelly even aware of the award of the contract at the end of October? The conversations around the regulations took place in November. If he was aware of that, he could not have made the point that we could have brought in the regulations in September or August. Was he aware?

One of the astonishing—

I must stop you. We have another panel to hear from. Members might want to recommend that we write to the cabinet secretary on the matter. However, for the moment, I thank the cabinet secretary for attending.

12:29 Meeting suspended.  

12:30 On resuming—  

Item 5 is consideration of the Restriction of Liberty Order etc (Scotland) Amendment Regulations 2019, following the evidence that we heard from the Cabinet Secretary for Justice. I invite members’ views on whether they wish to make any recommendations in relation to the regulations.

Members seemed to have a lot more questions to ask, so I suggest that we write to the cabinet secretary. We should liaise with the clerks and members should decide what questions they want to ask. We do not have to decide on the regulations today if members do not wish to do so and if they want further information. The committee has until 3 February to report to Parliament on the regulations.

I am in members’ hands. Do members want to make any recommendations to delay the regulations and get further information, or are they happy not to make any recommendations in relation to the regulations?

I think that we are going over old ground. The questions that are being asked are about the process; I do not think that anyone has an issue with the substance of the regulations. I think that we should let the regulations through.

Does anyone not agree with that proposal?

I do not disagree with the measures in the regulations. However, it is extremely unsatisfactory that the session was cut short. Certain things that the cabinet secretary said in response to me were incorrect, and I was not able to correct the record.

We can write to the cabinet secretary and you can ask him exactly what you would like to ask him. We have another panel ready to give evidence on the Children (Scotland) Bill, and they have been inconvenienced—they should have been heard more than an hour ago, and it is already likely that their session will be cut short.

On that basis, do members wish to write to the cabinet secretary to get further information? I am happy for us to do that—we have the time to do so. We can revisit the regulations on 3 February. If anyone has any questions, please give them to the clerks. Do members agree with that procedure?

I am happy to agree. Members should also write separately.

Members indicated agreement.

Are you content with that, James?

Yes.

Thank you.

Are we agreed that the committee does not wish to make any recommendations in relation to the instrument?

Members indicated agreement.

12:32 Meeting suspended.  

12:33 On resuming—