Meeting of the Parliament

Meeting date: Tuesday, June 25, 2019

Official Report 1233KB pdf

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Management of Offenders (Scotland) Bill

The next item of business is a debate on motion S5M-17893, in the name of Humza Yousaf, on stage 3 of the Management of Offenders (Scotland) Bill. I ask those who wish to speak in the debate to press their request-to-speak buttons.

Thank you, Presiding Officer. After seeing you banging the gavel just now, I am reminded never to get on your wrong side.

I am very pleased to be opening the stage 3 debate on the Management of Offenders (Scotland) Bill. First, I thank the members and clerks of the Justice Committee for their thoughtful and diligent consideration of the bill at stages 1 and 2. We have not agreed on everything—nor should we in such matters—but the conversation has been both sincere and constructive.

As members will know, additional evidence was taken on the bill in the light of the tragic murder of Craig McClelland, which was referenced by members during the consideration of stage 3 amendments, and I again extend my sympathies to his family. In June 2018, we were asked by Craig’s family to respond to the circumstances of his death and we were also asked by members of the Parliament how we would respond. I know that, for example, Ruth Davidson asked us to consider the creation of a further offence. We have listened and we have responded.

We accepted that an additional punitive element was needed for home detention curfew and that a new offence was appropriate. We created the offence that Her Majesty’s inspectorate of constabulary in Scotland recommended that we consider. The bill creates the new offence of remaining unlawfully at large and it improves the available powers of recall from home detention curfew. Those legislative measures sit alongside a significant number of operational improvements that have been made to HDC.

In May this year, the follow-up reports from Her Majesty’s inspectorate of prisons for Scotland and HMICS showed positive progress against their recommendations. I record my thanks to colleagues in Police Scotland and the Scottish Prison Service, and their respective inspectorates, for the work that they have undertaken to date to strengthen the HDC regime. I know that that is unlikely to provide much, if any, comfort to Craig’s family for the loss that they have suffered, but the improvements in the HDC regime were the right steps for us to take.

With the bill, we have sought to make important and progressive reforms that are designed to deliver on the Scottish Government’s commitment to reduce reoffending and ensure that Scotland’s justice system retains its focus on prevention and, importantly, rehabilitation, while maintaining public safety and enhancing support for victims. I think that we have got the balance absolutely right.

Part 1 of the bill provides for the expansion of electronic monitoring as part of our continued development of community-based alternatives to prison. The electronic monitoring provisions provide an overarching set of principles for the imposition of electronic monitoring. The bill provides clarity as to when and how electronic monitoring can be imposed, either by the courts in relation to criminal proceedings or by the Scottish ministers in relation to release on licence from detention or imprisonment. The bill also creates a standard set of obligations, which clearly describe what is required of an individual who is subject to monitoring.

The bill empowers ministers to make regulations to specify the types of devices that can be used for the purpose of monitoring. The introduction of new technologies, such as GPS technology, presents opportunities to improve the effectiveness of electronic monitoring, for example through the use of exclusion zones, which could offer victims additional reassurance.

Electronic monitoring using the radio frequency technology that we have available today has proved itself to be an effective tool for the justice system. We look forward to working with our partners in the justice system to develop services around the new technological uses that the bill enables. We will use electronic monitoring in a proportionate way to target further reductions in reoffending, providing structure to monitoring so as to keep people safe and secure and helping people to move on with their lives away from the justice system.

Part 2 of the bill is about reforming the system of disclosure of past convictions when someone seeks to enter general employment, for example by working in a shop or an office, or when they apply for home insurance. Members will be aware of the recently introduced Disclosure (Scotland) Bill, which seeks to reform the higher-level disclosure that is used to protect vulnerable groups. The Management of Offenders (Scotland) Bill does not directly change higher-level disclosure in any way.

Currently, disclosure periods are too long. That has created an imbalance between the need for general protection for the public and allowing people to move on with their lives. Part 2 seeks to rebalance that. The evidence is clear. A system that requires too much disclosure can have a negative impact on people’s lives. I was struck when members described how they had interacted with, for example, the Wise Group, which is an excellent organisation, noting that people who had committed crimes and had been in prison often talked about how they wanted to move their lives on. However, the stigma around disclosure and the practical impact of disclosure meant that there was at least a perception—if not the reality—that their CVs or job applications were put straight in the shredder once their disclosure information was received. The bill will reduce the periods of disclosure for the majority of sentences, it will bring more people within the scope of the protections under the Rehabilitation of Offenders Act 1974 and it will increase the clarity and accessibility of the terminology that is used in the legislation.

Part 2 of the bill will bring the most fundamental reforms of the Rehabilitation of Offenders Act 1974 in Scotland since it was introduced and will lead to the most progressive reforms of that legislation in the United Kingdom. I am pleased that part 2 received general support from the Justice Committee throughout stages 1 and 2.

Legislation is of course important but, clearly, so too is cultural change. That is why we have made a commitment to help to bring about a cultural change in this area. We will work with employers to help change their perceptions of people with convictions. People with convictions have much potential.

Part 2 will be an aid to tackling inequality. It will help prevent those who are already marginalised in our society from becoming more marginalised due to a lack of employment opportunities, which may result in their remaining involved with the criminal justice system. All the evidence and research in this area has shown that stigma can have an impact on employment, and that a lack of employment can have an impact on whether people continue to reoffend. As I often say in such debates, this is not about hard or soft justice but about smart justice. We believe that the proposed reforms will help to reduce reoffending.

Part 3 of the bill deals with matters relating to the Parole Board for Scotland and its activities. The provisions make some minor technical amendments to existing legislation; they make some changes to the appointment and reappointment arrangements for the Parole Board; they reinforce the continued independence of the Parole Board; and, importantly, they provide for the administrative and accountability arrangements of the Parole Board to be set out in secondary legislation.

Those are initial reforms and improvements. As I said in previous debates, the consultation on parole has closed, and we will analyse the results and take forward further changes.

The bill makes a number of important changes to improve the criminal justice system in Scotland. It positions us well as a country that is looking to the future, not just in how we embrace technological developments but, most important, in how we configure a justice system that is progressive and based on evidence of what is effective in reducing reoffending while—crucially—keeping people safe.

I move,

That the Parliament agrees that the Management of Offenders (Scotland) Bill be passed.

18:00  

I am pleased to have this opportunity to speak for the Scottish Conservatives on the Management of Offenders (Scotland) Bill.

The bill has, rightly, commanded a lot of time, both in committee and in the chamber, but it could be argued that it has not commanded enough time. I fear that there is a considerable chance that it will put the public at increased risk and deny justice to victims of crime. It is because of those implications that I reiterate the concern that I expressed at stage 1, which is that we have dealt with three considerable issues as one.

Does the member think that it is entirely responsible to say that the bill will put the public at increased risk?

It is entirely responsible to say what is the truth of the matter, which is that I think that the bill could put the public at increased risk, because of amendments having been disagreed to today. I will go on to talk about that.

We have rolled three issues into one.

Part 3 makes small reforms to the Parole Board for Scotland, the detail of which the cabinet secretary covered, but it has not had the attention, the coverage or the scrutiny that part 1 has had. It does not deal with the Michelle’s law campaign, explicit victim and family welfare assessments, more use of exclusion zones, allowing victims and families to attend and speak at hearings, et cetera. I am concerned that we have missed an opportunity to take a step back, review the whole Parole Board and its operation and introduce a bill that relates directly to that area.

I make the same point about part 2. Again, the cabinet secretary outlined to Parliament the principles in that regard. We know that getting a job is one of the best routes out of offending behaviour, and we know that it is difficult to strike the appropriate balance between the rights of society and employers to know about prior convictions and the ability of people with convictions to move on. We support the reforms, but they really should have commanded stand-alone scrutiny.

Part 1 is the most substantive section. It will see an increase in the number of criminals on tags in the community. In the stage 1 debate, I said clearly that at stages 2 and 3 we would have to see improvements to risk assessments and the response to breaches. However, we have not seen such improvements.

Of course, we are happy to support improvements to the technology of electronic monitoring. However, I remain concerned that the bill will extend its scope to ever more serious criminals, at the expense of public safety.

Will the member take an intervention?

If it is very brief, please.

Will the member substantiate his point? I do not understand why this bill will, of itself, increase the number of people who are out on tag. Other provisions that the Government introduces might have that effect, but this bill simply changes the technology, does it not?

No, I do not think that the bill simply changes the technology. The implication of what is proposed is that more people will be out on tag. I stand by that assertion.

Whatever the cabinet secretary’s assurances, the key public safety test has not been met. The cabinet secretary rightly reminded us of the reasons why the original bill was postponed and further evidence was taken. He talked about the shocking, unprovoked and devastating murder of Craig McClelland. Although there has been limited improvement to home detention curfew—and I am glad that the cabinet secretary acknowledged the pressure that came from Ruth Davidson to make that improvement—the reality is that that tragedy could have happened if the perpetrator had been on any type of early release.

Amendments in my name tried to address that issue. Throughout the process, I have tried to mandate a risk assessment tool. The Justice Committee demanded that, after all. Surely, before we do anything that increases the numbers on electronic monitoring, we need to have a robust and trusted assessment tool. However, Scottish National Party members voted down my proposed approach, and the record will show that the cabinet secretary said that it is not needed. I leave it to others to make the case otherwise.

I also argued that cutting off a tag should automatically constitute a criminal offence. I find it incomprehensible that the bill allows some offenders to cut off their tags and face no criminal sanction. The offence of remaining unlawfully at large is not good enough. It will not apply to people on community sentences who cut off their tags, and it will result in delays as the authorities establish whether an offender is unlawfully at large.

The SNP removed the power of arrest on suspicion, which I put into the bill, and decreased the minimum period that someone spends in jail before early release.

The SNP also decided that it was not appropriate to demand better completion rates on community orders, which, again, I struggle to understand. I acknowledge that there are reasons why completion rates are what they are, but before we put more people into that system, we should surely try to improve the rates to avoid the risk that the system becomes overloaded, which has consequences for the offender and for the safety of the public.

The record will show that I did what I could. I shall take no pleasure in being proved correct in the future.

On that note, I return to a point that I have made throughout the bill process. No matter to whom or which agency I posed the question, “What is most important in considering release on a tag—public protection, punishment or rehabilitation?”, no one would clearly say that public protection is paramount.

The ethos of the bill is something other than public protection. I think that it is about keeping people out of an expensive prison system and calling criminals “relevant persons” to avoid offending them. It is less about reconviction rates and more about saving money. In the ethos of the bill, those considerations figure more prominently than considerations of public safety and justice to victims.

I fear that the bill was proposed by the cabinet secretary’s predecessor in an atmosphere of complacency and with a view to extending tagging to inappropriate cases, and I fear that, with the bill, the Government has failed to learn the lessons of tragic cases such as that of Craig McClelland.

For those reasons and because of my fears for the consequences, the Scottish Conservatives cannot vote in favour of the bill today.

18:06  

In opening for Scottish Labour, I thank the clerks and the members of the Justice Committee for their thorough scrutiny of the Management of Offenders (Scotland) Bill. The bill will strengthen the safety and security of communities around Scotland and will assist in keeping people out of prison.

During the stage 1 debate, when discussing electronic monitoring, I referred to the view of Families Outside, which said:

“Without structured supports in place,”

electronic monitoring

“becomes a purely punitive measure”.

Although I welcome the reforms to electronic monitoring, not a single penny of additional funding is being made available to address the underlying causes of criminal behaviour and, without that, we are setting people up to fail on release from prison.

For the reforms to be truly successful, they must be backed by substantial budgets for community justice, social work and wider services that tackle poverty and health inequalities and promote education.

I see that the cabinet secretary is desperate to speak.

I hope that Mary Fee recognises that the criminal justice social work budget, which is to the tune of £100 million, has been ring fenced and that additional funding has been provided for community alternatives. I do not take away from her point that we should always continue to see whether we can increase that provision, but does she recognise that the criminal justice social work provision has been ring fenced and that there was an increase in the budget for community alternatives at the latest spending review?

I recognise the points that the cabinet secretary made. However, if we are to be truly successful in rehabilitating individuals and keeping them out of prison, we need to fully resource and support not just them but their families. It is crucial that budgets are put in place to do that.

Individuals who are released on home detention curfew are often among the most vulnerable people in society and it is our duty to provide support. Doing so protects people with convictions and also supports victims and the wider community. Our current justice system frequently sets people up to fail. We must provide the support and services that people need on release from prison. That includes access to a general practitioner, housing support and a correspondence address.

The third sector has played a vital part in supporting people through the criminal justice system. The sector needs guarantees of funding to ensure that support remains in place to assist people away from a life of crime and of inequality. However, sadly, those guarantees are limited.

Electronic monitoring can support the rehabilitation and reintegration of people with convictions back into their community. However, to ensure that, those on release through electronic monitoring and home detention curfew must know what conditions are being placed on them.

I welcome the expansion of electronic monitoring, but the risk assessment processes relating to it must be strengthened and the multi-agency approach, as recommended by HMICS, must be put in place.

Many people in the chamber today have spoken about the tragic death of Craig McClelland, which serves as a reminder that public protection must be paramount. Craig’s family are also campaigning for authorities to learn further lessons from that tragedy, and we support their call that every murder that is committed by someone on a home detention curfew must lead to a fatal accident inquiry. I am grateful for the comments that colleagues made about Neil Bibby’s amendment 140 today, although I am—as the family will be—sad that the amendment was not agreed to.

I also welcome the new offence that was created at stage 2 in relation to those who breach their licence conditions. The new offence of being unlawfully at large must be robust, with the right support and powers being made available to police and prison services to prevent further deaths like that of Craig McClelland.

Before I finish, I want to discuss the provisions in the bill relating to disclosure of spent convictions. There can be no guarantees that people who have served a prison sentence will not face any stigma. However, we must act to ensure that any stigma does not prevent someone from living a full and meaningful life, working to provide for themselves and their families. We know that disclosure is complex and is, rightly, required to protect vulnerable groups. We support the reforms to disclosure that will encourage people with convictions to feel welcome in society and the workplace. The Scottish Government must raise awareness among the public, and, in particular, employers and businesses, to prevent stigma from limiting the opportunities to work for people with spent convictions.

I will finish by repeating the words of Families Outside, which stated:

“Without structured supports in place,”

electronic monitoring

“becomes a purely punitive measure”.

For the measures in the bill to be successful, we must provide the appropriate level of care and aftercare for people with convictions. That will benefit society as a whole.

I will be happy to vote in favour of this piece of legislation tonight.

18:12  

This is good legislation, and it is all the better for having been scrutinised in detail. I am, therefore, a bit surprised and disappointed to hear my colleague Liam Kerr suggest that the scrutiny was anything other than thorough. I do not recall any aspect that we did not look into, and, indeed, we deferred consideration in order to take additional evidence.

The case for reform was strongly made. There were consultations in 2013 and 2017. It is progressive legislation. We should not apologise for it or for where it sits in the criminal justice landscape, in relation to other provisions that have been talked about, including disclosure and the presumption against short sentences. Scotland has a shameful number of people in its prisons, and we need to empty some of those prisons and close them. We need to ensure that public safety is paramount, and electronic monitoring can play a part in that.

The consultations showed that the previous regime was viewed as being of a high standard, albeit that there were regional variations. When we talk about the use of technology, what we want is a uniform system that applies across our country, with all its challenges, so that everyone has access to all the programmes. Of course, punishment is a factor, but there is also a role for electronic monitoring to play in supporting rehabilitative purposes.

The Scottish Parliament information centre briefing mentions that the working group report says:

“EM is a versatile form of control which can be imposed either as punishment or to support rehabilitative purposes. The use of EM as a standalone punishment should remain a legitimate sentencing option. However, in its various forms EM should now become integrated with measures with a proven track record of preventing and reducing further offending which assist individuals to desist from crime.”

There are a lot of opportunities ahead, particularly with regard to organisations working together. I am talking about not only the statutory organisations but the many honourable groups in the third sector, which play a vital role.

Restriction of liberty orders, drug treatment and testing orders, community payback orders and sexual offence prevention orders all have a role to play in the system.

The suggestion of transdermal monitoring is interesting. I am sure that we want to future proof our legislation with regard to technology that might come on board.

At the end of the day, I hope that we never lose sight of the fact that it is actually humans that we are talking about—humans with housing needs and medical needs. Their humanity must come into the system, rather than the system being totally automated. We must take account of the individual and their circumstances.

The role that electronic monitoring can play pre-trial and in lieu of remand cannot be underestimated. For instance, it can play a role pre-release in allowing prisoners to go out to seek housing or to see a GP. In all that, the pivotal role of criminal justice social work is absolutely paramount.

Some of the licence conditions relating to location and alcohol and drugs are commendable. The concerns of Scottish Women’s Aid have been addressed in part by the way in which the legislation has been brought forward. We have heard repeatedly about the need for co-ordination of the public services—the police, the prison, the courts and social work—which is important. I have to say, in the brief time that I have left, that the role of a private company is out of step with that. I and the Scottish Greens would like to have seen services taken in house.

Where next? There are new technologies, and the direction of travel is more progressive. We must reduce the number of people in prison, by diversion from prosecution and many other methods. The legislation is very positive, and the Scottish Greens will be voting for it at decision time.

18:16  

I thank those who gave evidence to the committee, our clerks, SPICe and others. I also thank my Justice Committee colleagues for the collaborative work that they did in scrutinising the bill. It was therefore all the more disappointing to hear Liam Kerr’s earlier remarks, which amounted to dog-whistle scaremongering. The inconvenient truth is that all the evidence suggests that short-term prison sentences are more disruptive and actually make communities less safe, so we will be supporting the legislation this evening.

Mary Fee made the entirely valid point that the way in which the bill is implemented will be crucial. In particular, as we heard time and again, the use of electronic monitoring for those who would have been released in any case would not be acceptable in terms of up-tariffing. The implementation needs to be properly resourced.

Similarly, resourcing will be key for electronic monitoring as an alternative to custody and holding people on remand. Electronic monitoring in itself is insufficient to address issues of public confidence. Without other supports around the individual concerned, it simply risks setting them up to fail. As Families Outside observed,

“Without structured supports in place, EM becomes a purely punitive measure that fails to address the reasons for the offending or to reduce the likelihood of breach due to pressures of unstable housing, substance misuse, poverty, chaotic environments, and damaging relationships”,

which Mary Fee also suggested. It must be about improving individuals’ chances of rehabilitation and reintegration in their communities while offering assurances to those communities. In many respects, that will be the measure of whether the legislation is successful, as we hope that it will be. It hinges, of course, on assessments and judgment of risk. As I said in the stage 1 debate,

“For those assessments to be robust, information and expertise have to be appropriately gathered and shared.”—[Official Report, 7 February 2019; c 75.]

Criminal justice social workers must have access to the information that they need in compiling their reports. Seeking views from everyone who may be affected, including family members, will be important in assessing an individual’s suitability for electronic monitoring.

Where electronic monitoring does not work, despite best efforts and best judgments, we must be prepared to act. I therefore welcome the decision to create a separate offence of remaining unlawfully at large. That is given added weight by the findings of the two inspectorate reports last autumn, and it is a sensible move towards giving the public reassurance while taking steps to make our criminal justice system more progressive.

Of course, that does little to address the loss and anguish that is felt by the family of Craig McClelland, who was so brutally and senselessly murdered in 2017. Despite those two inspectorate reports, the family is still waiting for answers as to what happened and how others can be spared the agony that they continue to suffer. With an appeal pending, that agony deepens. I was therefore disappointed that we did not agree to the amendments by Neil Bibby and Liam Kerr that would have made a fatal accident inquiry automatic in such circumstances.

As I have said before, the current delays in FAIs are unacceptable. The impact of delay on families who have lost loved ones is unimaginable, but it also prevents lessons from being learned and, where necessary, laws from being changed, which cannot be right.

The changes to the rules governing the disclosure of convictions to bring them more in line with the rules south of the border make sense. We now need employers to drop the simplistic and generally irrelevant tick-box approach to asking potential employees about convictions. We know that people can and do stop offending and that employment is often a key factor in that desistance. Therefore, in the interests of public safety, reducing the barriers to employment makes sense.

Passing legislation is inevitably the easy part. Making the changes a success will take effort, collaboration and resources. Although Scottish Liberal Democrats will support the bill at decision time, we will continue to hold Government to account to ensure that ministers will the means as well as the ends.

We move to the open debate, with speeches of four minutes, please. I have a little time in hand for interventions if members wish to take them.

18:20  

As deputy convener of the Justice Committee, I thank the clerks for their hard work in helping us to get the bill to this stage—as always, they have done an excellent job. I also thank all the expert witnesses, who gave evidence with clarity and professionalism.

The bill is important and, as we have heard, it is complex in parts. It will pave the way for our work to assist a culture change in penal reform in Scotland. It is essential that we get it right, and I believe that the amendments that have been made have been beneficial to achieving that.

The three main parts of the bill are on the expansion and streamlining of the uses of electronic monitoring; a review of the Rehabilitation of Offenders Act 1974 to change the rules relating to disclosure of convictions; and a review and clarification of the role of the Parole Board for Scotland. The bill brings about a number of reforms that I believe are badly needed to ensure that Scotland’s justice system retains its focus on prevention and rehabilitation while enhancing support for victims.

We know that the key feature of electronic monitoring is risk assessment, which is why we believe that the measure should be used only after a comprehensive assessment is made that takes everything into account with regard to public safety. That is why amendment 127 was so important.

On compliance, we should not forget that, as the Law Society of Scotland briefing reminds us, many of those who are subject to electronic monitoring will be among the most vulnerable in society and will have chaotic lifestyles that prevent compliance with the provisions of such monitoring. It is therefore essential that the full remit of electronic monitoring is understood by those for whom it is an option and that the consequences of non-compliance are made clear to them. In addition, the public must have confidence that their safety will not be compromised by that disposal and all efforts should be made to highlight the reasoning for the measure, which is based on reducing reoffending and securing rehabilitation.

The committee highlighted the requirement for adequate budgets to be put in place for criminal justice social workers and services to support people who may be subject to such monitoring. Funding of such services, many of which are provided by excellent third sector agencies, is crucial to the success of any extended role for electronic monitoring and the Scottish Government’s commitment to the rehabilitation of offenders. I appreciate the cabinet secretary’s comments and the reassurance that he provided to Mary Fee.

Of course, it is vital to keep people out of prison wherever possible. We know the damage that imprisonment does to women, families and in particular children. Nancy Loucks of Families Outside has said:

“Electronic monitoring offers a valuable tool for reducing the use of imprisonment. Prison fractures families, whereas with the right support in place, electronic monitoring can keep families together, thereby maintaining social supports and reducing the risk of further offending.”

We know that short sentences do not work, which is why the Government’s presumption against short sentences is crucial and an important part of the reform jigsaw.

The Scottish Government has taken steps to bolster the law by creating a new offence of being unlawfully at large, which gives police more powers to apprehend prisoners who are escaping justice.

Does the member acknowledge that the offence of being unlawfully at large is actually quite restricted, as it applies only to certain categories?

It certainly applies to the most serious categories, which is what we are trying to address. I am not sure what that intervention was meant to achieve.

The parole reforms aim to simplify and modernise the process. The bill expressly states that the Parole Board will continue to act as “an independent tribunal” using professional expertise to ensure the safety of the public.

The Scottish Government is committed to ensuring that Scotland’s justice system retains its focus on prevention and rehabilitation while enhancing support for victims. I believe that the bill puts those priorities in place and provides a road map to a fairer and safer justice system for the people of Scotland.

18:24  

I, too, thank the clerks to the committee for their hard work, and the witnesses for the evidence that they gave to the committee.

People in Scotland need to have the utmost confidence in their justice system. Our sentencing must be both credible and reliable. However, replacing more prison sentences with community sentences will not lead to the outcome that we all want, especially for victims of crime. Without adequate risk assessments or the possibility of a swift response to breaches of electronic monitoring, public confidence is dangerously taken for granted.

The Management of Offenders (Scotland) Bill seeks to promote an expansion to community sentencing as well as reforms to parole and the disclosure of convictions. Those reforms may be positive steps forward in the right direction; however, it is the expansion of electronic monitoring for community sentences that stops the bill being truly effective.

Of course, we have to strike the right balance between securing community safety and honouring offenders’ right to be rehabilitated. However, we are surely all agreed that, where serious crime is concerned, the safety of our communities is paramount—justice calls for that. Does it really serve our local areas to expand community sentencing? If we expand it, we widen the risk of reoffending. Offenders justly deserve a punishment that fits their crime.

I do not say this lightly, but I find Maurice Corry’s contribution derisory, frankly. Will he not accept that all the research points to the fact that community alternatives are much more effective in reducing reoffending? If that is the case, does that not mean fewer victims of crime? What Maurice Corry is saying is completely counterproductive for victims.

At the moment, one in three community sentences is never completed.

How many go back to prison?

Obviously, some do—I do not have the exact figures.

Excuse me. This is not a private conversation. Mr Corry, are you willing to take another intervention?

Yes.

Does Maurice Corry not understand that, because more people go back to prison after a short prison sentence than end up failing to complete a community payback order, by his logic, short prison sentences should be abolished? He should vote for that later.

No. I do not agree with the cabinet secretary, because there are two different types of prisoner: those who are very difficult to rehabilitate and those who have been to prison once and then see the light. On my visits to several prisons in Scotland, I have seen that people are trying to get rehabilitated—even in prison—but we must be careful that we do not have a one-size-fits-all approach. That is the point that I am making. The bill proposes an increase in the use of fines and community sentences that do not go far enough towards ensuring public safety.

I will not deny that the bill makes some worthy proposals. For instance, part 2, which focuses on the disclosure of convictions, is certainly a step in the right direction. It aims to reduce the period in which people, after serving their time, must disclose convictions. Currently, when someone applies for new work or further education, convictions must be disclosed according to the timetable that is set by the Rehabilitation of Offenders Act 1974. Of course, having to disclose spent convictions for a long period afterwards can negatively hamper people’s opportunities to move on from past offences. The change will allow reformed offenders to move forward, and it will encourage them to reintegrate into and contribute to society. I do not question that part of the bill.

However, I do question the bill’s purpose of ensuring that more community sentences are handed out that may, ultimately, fail to be impactful. For example, we know that a third of community sentences are not completed. Indeed, the completion rate of community payback orders has remained virtually unchanged for the past three years. With that in mind, I am not convinced that the bill will enable a just outcome.

Of course, it is right to explore alternatives to prison. A blanket prison punishment for every person and every crime would not be right, but the alternatives are effective only when they are appropriate and allow proper justice for victims. Perhaps it would be more worth while to focus on improving electronic monitoring and making it as effective as it can be. For instance, police officers should be given powers to respond more quickly to breaches of electronic monitoring. Moreover, if risk assessments were permitted to include greater victim information for criminal justice social workers, that would allow more insightful and appropriate decisions to be made on a firm basis. In that regard, I refer to the comment that I made to the cabinet secretary in relation to different types of prisoners.

For me, the main concern is the bill’s lack of a uniform response to the removal of an electronic tag. Indeed, an offender can cut off or tamper with an electronic tag and the bill fails to make it an automatic criminal offence for them to do so. Such an action can have catastrophic results, as we saw in the case of the murder of Craig McClelland by James Wright. Although such cases have rightly informed amendments to the bill, that example also confronts us with the risk involved in encouraging the expansion of community sentencing.

I recognise that the breaching of sexual offence or sexual harm prevention orders is, rightly, seen as an offence. However, a breach of other types of orders, including drug treatment and testing orders, restriction of liberty orders and community payback orders, will still not amount to an offence. Surely, every community order and licence condition should stipulate that removing a tag is an immediate criminal offence. As my colleague Liam Kerr pointed out, Victim Support Scotland has highlighted that, to keep victims safe, we must respond strongly and clearly to any breaches of electronic monitoring. That is the only way for it to be truly effective for our communities and for victims.

Can you draw to a close, please, Mr Corry?

As I have said in the chamber before, the bill seeks to reform offenders but, in doing so, it overlooks the needs of victims. Victims deserve a fair and just outcome that places community safety at the very forefront of daily life.

18:31  

As someone who is not member of the Justice Committee, I pay tribute to the committee for its due consideration of the bill. I am well aware of how much work went into it, and we can tell, from how members of the committee are speaking today, how seriously they took that job.

There are two main strands to the bill that is before us today: the consideration of public safety in relation to people being released with tags, and the associated electronic monitoring and—importantly—rehabilitation. It is important that the public feel confident about their safety and that they can have confidence in part 1, which discusses the extension of electronic monitoring. There have been some big steps forward in technology in recent years, particularly in relation to GPS. That progress allows those who have been released under electronic tagging conditions to be properly monitored to ensure that their tag remains in place and minimises the chances of their breaching those conditions. It is also important that there is proper multi-agency work to back that up. Some budget issues need to be addressed in relation to that. Third sector organisations need proper budget support, as does the funding of electronic monitoring.

It is disappointing that the amendments in the name of Neil Bibby, which related to the tragic case of Craig McClelland, were not agreed to. I pay tribute to Neil Bibby for his work on those amendments not only today but throughout the bill process. If someone commits a murder in the prison system or the care system, there is a fatal accident inquiry; it therefore seems logical that, if someone who is on an electronic tag commits a murder, there should also be a fatal accident inquiry. It would have been better to place that on the face of the bill.

As Mary Fee and John Finnie have said, rehabilitation is key to reducing reoffending and reducing the pressure on prisons. Sadly, when they leave prison, too many prisoners are released out on to the street without adequate support. Groups such as the Wise Group carry out a lot of really important work in that area, and we should be doing more to support such work.

As other members have said, for people to successfully go back out into the community, they need a bit of stability in their lives. They need support with housing—they should not to be put in a situation in which they might be homeless. To deal with health issues, they need access to a GP, and they need support to get into employment. Those three factors would give important stability, which would help them not to reoffend and return to prison.

As we go forward, it is important that there is a sufficient level of expertise in the Parole Board for Scotland. The measures in the bill partly address that, but there will be other issues to consider.

At the stage 3 vote, Scottish Labour will support the bill. However, in order to meet its objectives successfully, it is important that we follow it through by funding multi-agency work and supporting key activity around stability for prisoners to reduce reoffending.

18:35  

I thank the Justice Committee clerks, our witnesses and my fellow MSPs for all their work to get us to stage 3 today.

The bill is, of course, part of the bigger jigsaw of Scotland’s justice reforms. Section 4 of the policy memorandum makes it clear that

“The Management of Offenders (Scotland) Bill brings forward a number of reforms designed to deliver on the Scottish Government’s commitment to continue to transform the way in which Scotland deals with offenders”.

For any Government, there is a careful balancing act between protecting victims and ensuring that the justice system focuses on rehabilitation and prevention.

As we have heard, one of the key measures in the bill is the introduction of GPS technology to improve the use of electronic monitoring. Section 6 of the policy memorandum states:

“The expansion of electronic monitoring supports the broader community justice policies of preventing and reducing reoffending by increasing the options available to manage and monitor offenders in the community, and to further protect public safety.”

As Scottish Women’s Aid told the committee:

“Electronic monitoring and particularly use of GPS technologies may help to ensure that perpetrators of domestic abuse serving sentences in the community, released on bail, or on Home Detention Curfew, adhere to the terms and restrictions imposed, thereby improving protection of women, children and young people who have experienced domestic abuse.”

Nonetheless, Scottish Women’s Aid was keen to highlight that GPS does not detect all forms of domestic abuse—as legislated for by this Parliament last year—including manipulation via text messages and social media communication. Therefore, electronic monitoring is not for all offenders, and the “National Strategy for Community Justice” makes it clear that

“Alternatives to prison will not be appropriate for some people.”

Jenny Gilruth is making important points. Does she also agree with Scottish Women’s Aid that, in order to make sure that the scenarios that she has outlined can be prevented, we need much harder sanctions if someone cuts off their tag?

I thank Liam Kerr for that intervention. Throughout today’s consideration of amendments, we have heard similar points from him, but I am not convinced by them. Scottish Women’s Aid also made points about the fear that women victims might feel if, for example, the offender was out with a tag and they were able to see the offender moving around. That could increase their anxiety. There are a number of issues that the committee took into consideration throughout the deliberations, and we are now at stage 3, so I will move on and make progress. Nevertheless, I take Liam Kerr’s point.

Part 2 introduces a fundamental reform of the Rehabilitation of Offenders Act 1974. Its focus is on ensuring that there is a balance between people’s right not to disclose previous offending behaviour and the need for general public protection. In its written submission, Nacro told the Justice Committee:

“Criminal record disclosure is one of the main barriers that people with criminal records face when trying to secure employment. Our experience indicates that this is largely due to employer perceptions and misunderstandings, often based on false assumptions around perceived risk to an organisation’s security and harm prevention, as well as a belief that people with criminal records lack personal attributes such as honesty and reliability.”

As John Finnie alluded, expanding the use of electronic monitoring—where appropriate—should also be considered in relation to Scotland’s imprisonment rate. As Dr Sarah Armstrong from the Scottish centre for crime and justice research told the Justice Committee a couple of weeks ago, when it comes to how many people we lock up, if Scotland were a US state, we would be on a par with Texas or Louisiana. Dr Armstrong described the “paradox” in the fact that Scotland, as

“a country that is so committed to social welfare investment makes huge use of such an incredibly expensive resource as prison.”—[Official Report, Justice Committee, 4 June 2019; col 24.]

Liam Kerr spoke about costs, and I want to talk about costs, too. Dr Hannah Graham has pointed out that the average cost per prisoner place is £35,325 per year. In contrast, the average cost per community payback order is £1,771 a year, and electronic monitoring—or tagging, as it is known—costs just £965 per year. That is a fraction of the cost of keeping a prisoner in a country that, shamefully, has one of the highest prison rates in western Europe.

Nevertheless, investing in alternatives to prisons should not just be about cost, as Liam Kerr implied. We must measure the impact of the dispensations that sheriffs have at their disposal. Indeed, as Mr Kerr’s colleague David Gauke, the UK justice secretary, said recently, we need to move to a more imaginative approach to crime and punishment, with a focus on rehabilitation in the community. We must therefore have a range of different and robust alternatives to incarceration that allow the justice system to interrupt the cycle of criminality without consistently relying on prison as a fallback option.

I notice that I am well over my time, so I will conclude there.

We have a little bit of time in hand, so I can allow you up to six minutes, Mr Johnson.

18:40  

Why, thank you, Presiding Officer.

This has been something of a marathon. I acknowledge the bill team, which is sitting at the back of the chamber; it has been through quite a long process, but that has been necessary, given the circumstances.

I will begin my concluding remarks by talking about the key benefits of the bill. James Kelly set those out quite well. New technology brings with it new possibilities of doing things more effectively and providing new possibilities around monitoring individuals. The fact that we cannot use GPS for electronic tagging speaks to the need for this bill.

The committee took evidence from Karyn McCluskey and others about the possibilities of electronic tags that can monitor levels of alcohol or other substances in the bloodstream, and it is clear that they would have benefits over the old-fashioned radio tags that are currently used. They would provide for more effective community payback orders and more effective monitoring of those who we choose to release from prison.

The provisions around disclosure are important. We need to ensure that we make it easier rather than harder for people to reintegrate into society.

The modest changes to the Parole Board are welcome because they are not overly prescriptive about those who go through it. I truly welcome the addition of the test that has been included at stage 3. It is important that our justice system is transparent. If people do not understand how our justice system works, how can we expect them to trust it? By publishing explicitly a set of tests, we can ensure that we have the level of transparency we need about parole. After all, we are entrusting the Parole Board with incredibly difficult and important decisions.

Ultimately, as we decide how to vote on the bill this evening, we need to consider the circumstances around Craig McClelland’s murder. They were tragic and they showed deficiencies in the regime as it stood at the time. I conceded at stage 1 that there were deficiencies in the evidence that the committee took. I am not sure that we asked the right questions about what happens when people breach. Were the powers sufficient as they stood? Those questions were asked subsequent to that event, and they were the right questions. Indeed, I believe that the implementation of a new offence will help to put in place the robust measures that are required so that we can apprehend someone when they breach.

The guidance on risk improves matters. The risk assessment was simply not robust enough, as the prisons inspector said. The future risk management work promised by the cabinet secretary and the Risk Management Authority will enhance that.

That is not to say that the bill is without shortcomings. I regret that we did not pass the amendments on fatal accident inquiries. It is right that we investigate the failures that have occurred when there is a death in custody, and Neil Bibby’s point was that essentially the same principle should apply to a slightly different context. When a death occurs when someone is released on tag, we need to ask the same questions, and they can really only be asked in a fatal accident inquiry.

There is also work to be done around inter-agency working. The most major deficiencies in the Craig McClelland case arose in information being passed between the SPS and the police. We need to do an awful lot more work to ensure that that cannot happen again. It is astonishing that some issues that were raised were the result of simple things such as the police not communicating what email addresses they were using. We need to bottom out why that happened.

We should have made cutting off a tag an offence. The tag is the means by which we monitor people for good reason. The act of tampering with or removing the means of being monitored is serious and should automatically allow the police to apprehend someone.

I caution my Conservative colleagues across the chamber. I agree with what Liam McArthur said about Liam Kerr’s remarks. There is not just a degree of but a substantial amount of dog-whistle politics going on.

The bill will not widen the scope of community justice provisions; it will not create new sentences or disposals. Arguments that the Conservatives made might well apply to the presumption against short sentences—although I disagree with them—but the place for that debate is when the presumption is considered and not in relation to the bill. By making those arguments in relation to the bill, the Conservatives deliberately misconstrued and misrepresented the bill. That is dangerously irresponsible.

The arguments against the presumption fly in the face of evidence and of what the Conservatives’ colleagues in the UK Parliament and the UK Government are saying. I make one simple suggestion to my Conservative colleagues—that they take a walk with Rory.

The bill is something of a missed opportunity. The provisions are useful, but the bill more properly should have looked at what happens after we release prisoners. How do we ensure that their reintroduction to society is more successful? What do they need for that to succeed? Mary Fee was right in her opening remarks.

I recognise that my stage 2 and stage 3 amendments on GPs, on proof of identity and address and on housing might not have been as well developed as they needed to be, but we must examine such issues in future legislation. The bill has missed the opportunity of looking more holistically at how we ensure that, after people are released from prison, they are successful—judged by the fact that they do not reoffend, that they have meaningful and gainful employment and that they are not released into homelessness.

I say to the cabinet secretary that we need more debates. It is incumbent on the Government to make time for debates to discuss the big issues about the purpose of the justice system and of prison and about how we ensure that people succeed when they are released from prison. In closing the debate for Labour, I make that plea to the cabinet secretary.

18:47  

I thank all the witnesses who gave evidence and I thank the Justice Committee clerks and members for all their hard work on the bill.

I, too, consider the bill to be an opportunity lost, but for different reasons from those that Daniel Johnson gave. The bill’s long title refers to offenders, which meant that the use of electronic monitoring could not be expanded to include interim disposals, such as bail, which are used before a person has been convicted of an offence. Tragically, that means that remand prisoners—the group of individuals in the criminal justice system who most need and should benefit from the expansion of electronic monitoring—cannot be included in the measures.

If the bill extended electronic monitoring to remand prisoners, it would have cross-party support and would be passed unanimously this evening. The cabinet secretary might not be prepared to acknowledge this, but—sadly—the stage 2 amendments that he tried to lodge and which were ruled inadmissible because the bill is about post-conviction monitoring confirmed the position.

The bill is in three main parts. Part 2 reduces the length of time for which people must disclose convictions after serving sentences. It also extends the range of sentences that can become spent. That part had the entire Justice Committee’s support.

Part 3 makes reforms to the Parole Board for Scotland and seeks to remove the requirement for the Parole Board to include a High Court judge and a psychiatrist. There was considerable debate about that provision. In particular, it seems bizarre in the extreme that after the committee had concluded its stage 1 report, the Scottish Government launched a wide-ranging consultation on parole.

However, it is part 1, which covers electronic monitoring and expands and streamlines its use, that contains by far the most worrying and contentious provisions in this area, in relation to which the committee is divided. In particular, the provisions will make it possible to replace some jail sentences. According to the former Cabinet Secretary for Justice, electronic monitoring could be used for individuals who are being considered for a short-term prison sentence. That could, and probably will, include those convicted of domestic abuse. Various stage 3 amendments have, therefore, sought to address breach of electronic monitoring obligations. In terms of response times to breaches, Victim Support Scotland said:

“It takes too long for someone to be found in breach”.

At stage 2 and again at stage 3, I lodged amendments that called for an immediate or an as-soon-as-possible response by Police Scotland. My amendments sought to ensure that there is an effective response, crucially, when deemed necessary. It is disappointing that the amendments were not agreed to.

Robust risk assessments are crucial. Home detention curfews allow prisoners to spend up to a quarter of their sentence in the community wearing an electronic tag. The curfew condition requires criminals to remain at a particular place for a set period each day. However, James Wright was able to breach his home detention curfew conditions and stab to death father-of-three Craig McClelland despite being unlawfully at large for almost six months.

The Scottish Conservatives, Labour and the Liberal Democrats have all called for an independent inquiry into Craig McClelland’s death, and Neil Bibby did so effectively today, with regard to his amendment 140. Without that provision, nobody can be totally confident that the solutions that are proposed will be adequate. It is, therefore, regrettable that the Scottish Government has refused a full independent inquiry.

Finally, the Wise Group has stressed that unless the extension of electronic monitoring is sufficiently resourced, offenders are being set up to fail. In response, the Justice Committee called on the Scottish Government to provide adequate budgets and said that electronic monitoring should be used only after a comprehensive assessment of risk, particularly for those individuals who would otherwise have been incarcerated.

As neither of those conditions has been adequately fulfilled, the Scottish Conservatives will be voting against the bill this evening.

18:53  

I thank members across the chamber—most of them, at least—for their contributions to the debate, and I extend my thanks to everyone who has been part of scrutinising and shaping the bill during its passage through Parliament. I also thank the Scottish Government bill team and their colleagues in the Scottish Government for all their work in drafting the bill. They are an excellent team who have worked with a couple of cabinet secretaries to get this bill into the good shape that it is in today. I also pay tribute to my predecessor, Michael Matheson, for all the hard work that he did on the bill at its introduction.

I was not planning to spend much time on the contributions of the Conservatives, but I cannot let their, frankly, naked opportunism go. I find it incredible that such often intelligent people could make such asinine and derisory remarks during the debate.

Liam McArthur called it dog-whistle politics and grandstanding politics, and he was right, but I have to say that the Opposition is as predictable as it is—to be frank—tiresome, because we know that it is just playing to its gallery. We know the pattern. I would bet my mortgage on it that there will be a press release from Liam Kerr and the Conservatives tonight or tomorrow littered with the phrase “soft justice”. That will be picked up by his friends at the Daily Mail and the Daily Express. He will play to his gallery, but not successfully, because the majority of Scots feel safe.

I say to the Conservatives, and particularly to Liam Kerr, that I have a great amount of time for him but he is quickly losing credibility on the issue. The research and the data demonstrate clearly that progressive justice reforms such as the ones that we are discussing today and the ones that we will vote on tomorrow are going to reduce reoffending. That means fewer crimes and fewer victims.

Whenever progressive reforms are brought to the chamber, Liam Kerr and the Conservatives fail time and time again. They present a false picture that there is a binary choice to be made, of victims versus those who have committed crimes. That is simply not the case. It is very possible to be on the side of victims—as we are, and as every member of this Parliament is—and also to want to improve the rehabilitation chances of those who have committed crimes. It is not a binary choice.

Is it the cabinet secretary’s position that having a proper risk assessment tool and sanctions for cutting off a tag are merely dog-whistle politics and a binary choice?

The member has used several policy positions and several hooks to do what he was always going to do when the bill was introduced and vote against it. He was always going to vote against the bill because it simply does not play to the gallery that he wishes to play to.

It does not just diminish the Conservatives to present that false choice of victims versus the rehabilitation of those who commit crimes. It is, frankly, an insult to all of Liam Kerr’s colleagues across the Parliament who believe that if we improve the chances of rehabilitation of offenders, we reduce reoffending and, as a result, have fewer victims of crime.

Let us consider some of the points that were made. Maurice Corry said that he could not support the bill because of the rates of community payback order completion, and he talked about imprisonment as an alternative. The fact is that the reconviction rates for those on short sentences are nearly twice as high as the rates for those who are given a CPO. That is an argument for further community alternatives and not a reason to back more punitive short prison sentences.

I am disappointed but not surprised by the dog-whistle politics—as Liam McArthur called it—of the Conservatives. I make a plea to them, as Daniel Johnson did, that they should “take a walk with Rory”, as he described it. They should speak to their colleagues in the UK Government such as David Gauke, whom I have a lot of time for, and the many others who have looked towards Scotland and said that there is much that they can learn from our policies on the rehabilitation of those who commit crimes.

I turn to some of the other contributions that were made by members across the chamber. I thank Mary Fee for what was a very thoughtful speech. I want to reassure her on the questions that she asked the Government about further spend on community alternatives. We have stepped up to that challenge in the spending review. If I can throw back a challenge, I say to her that, come the next spending review, it would be helpful if Labour came to the Cabinet Secretary for Finance, Economy and Fair Work with proposals and said, “This is where we want some of that money to be spent.” Let us enter a productive dialogue in that regard.

We also heard excellent speeches from John Finnie, Rona Mackay and Jenny Gilruth. I give Daniel Johnson a special mention. I see that he has gone all al fresco since he left the front bench—his tie is off and he looks more relaxed. Regardless of whether he is on the front bench or the back benches, he made a very considered speech. It was an excellent speech, actually, and one that I think the Conservatives and others outside the Parliament would do well to listen to. I take his point about the Government reflecting on the potential need to bring forward further debates on other issues that affect prisoners, such as support for housing and GP services and other throughcare support.

Once again, I am very proud to be moving the motion on the bill at stage 3. It is part of a wider package of progressive justice reforms that this Government has introduced. At the heart of those reforms is our absolute belief that people are capable of change. We believe that people who have committed crimes can transform their lives, be productive members of society, contribute back to society and change their lives for the better. We will vote tomorrow on the presumption against short sentences of 12 months—the Presumption Against Short Periods of Imprisonment (Scotland) Order 2019—which, with today’s bill, is part of a suite of measures that we will introduce. They say that we are absolutely on the side of victims and will continue to improve their justice journey, throughout the criminal justice system, but hand in hand with that goes the belief that people can change and that rehabilitation is paramount. With that, I am delighted to commend the bill to the Parliament.