Group 4 is on custody and punishment parts: consideration of protection of the public. Amendment 20, in the name of Bill Aitken, is grouped with amendments 22, 31 and 32.

I think that there is genuine agreement that anybody who suggests that sentencing is other than complex and difficult is being naive. Sentencers require to consider many issues. Retribution and punishment of the offender is one, the need to deter the offender or others who might be of like disposition to offend is another, and rehabilitation certainly has a part to play, but surely one of the most important aspects of the selection of a sentence must be the danger the offender poses to the wider public. As the bill stands, judges will be precluded from taking that into consideration.

The issue was debated at stage 2, but I was unconvinced by the Executive's argument that the bill protects the public satisfactorily. I do not accept its argument that the Parole Board for Scotland's deliberations will cover the matter. It remains to be seen to what extent the judge's report in cases of a violent or sexual nature reflect the evidence heard by the court or an agreed narrative presented by the prosecutor. What cannot be denied is the fact that the person who is best able—although not exclusively so—to assess the danger the offender presents is the trial judge.

It is ludicrous that the input of the trial judge is largely ignored in the sentencing process.

Prevention is an important aspect of the sentencing consideration. It is ridiculous to remove judges' power to consider the risk that the offender presents. Amendment 20 and the consequential amendments 22, 31 and 32 seek to reinstate the right of judges to take that into consideration.

Scotland has a legal practice of which we can all be proud. Unfortunately, its effectiveness is being diluted by legislation being passed by the Executive that interferes with judicial discretion and replaces judges' rights with the right of the Parole Board for Scotland to make decisions behind closed doors.

The existing system is much more transparent.

The member highlights the parts of the essence of the Scottish system that he alleges are being undermined. Would the system be undermined further if we got rid of one of its key elements, which is the double jeopardy principle?

That is a separate argument. My view on the matter is well known. The double jeopardy principle requires to be revisited in the light of technological advances and in the interest of fairness to victims and their relatives, who should see justice being done.

Does the member consider that amendment 22 is consequential to amendment 20, or should the matter be dealt with in its own right?

It could be dealt with separately, but the basic principle stands.

For the first time, a Parliament is seeking to reduce the powers and independence of the judiciary. That is alarming. The existing system is at least transparent. Under the Executive's proposals, decisions will be taken by the Parole Board based on the information that is provided, which in many respects will not be open to challenge. That is unfortunate in the extreme.

I move amendment 20.

We are genuinely open-minded on the matter and will listen to what the minister says.

Mr Aitken's point is valid. We must take cognisance of the protection of the public, and we would be failing if we did not expect the judiciary to do that too. That said, we come back to the fundamental ethos of custodial sentences. Why do we impose them? Sadly, it is sometimes the case that prisons are receptacles for those who have social inadequacies or suffer from drink, drugs or deprivation. However, the fundamental ethos of prison is that it exists to punish dangerous people from whom we need to protect the public and/or to deal with people who have committed offences that are so serious that the disapprobation of the community can be shown only by a custodial sentence.

It can be argued that the element of protection of the public can be contained within the punishment that the sheriff or judge hands down. If that is the case, doubtless we will be satisfied. We will be interested to hear what the minister says on whether the protection of the public can be dealt with in the punishment aspect—in the sentence that the judge will impose—and on whether that will be taken as read. If not, we will have some sympathy with Mr Aitken.

It is clear that we need an element of protection of the public. The question is whether it needs to be specifically stated or whether it is already dealt with and clearly understood by the judiciary.

I had a sense of déjà vu when I listened to Bill Aitken, because his amendments are remarkably similar to amendments that he lodged at stage 2, which the Justice 2 Committee rejected for the reasons that I will outline to the chamber. However, he managed to be even more mischievous than he normally is, and he perhaps bordered on being something more serious than mischievous in his allegations about what the Executive seeks to do in the bill. We have a responsibility to ensure that we do not, in what we say, undermine people's confidence in the system.

Amendment 20 seeks to remove the requirement for the court to ignore public protection when the custody part of a sentence is set under section 6. Amendment 22 would add the consideration of public protection to the factors that the court must take into account when it sets a custody part of more than 50 per cent of the sentence. Amendments 31 and 32 would make similar provision in relation to life sentences and the setting of the punishment part under section 15.

We have said all along—and we clarified it at stage 2—that the right time for public protection to be taken into account is when the court considers the appropriate length of the total sentence. As we have said before, the bill is about sentence management, not about sentencing itself. It is for the judge to consider all the factors that they consider relevant and to decide the total length of the sentence. At that stage, we are not able to fetter the consideration of the judge in what factors they take into account. The bill is about sentence management, or what happens when the headline sentence has been established.

The custody part of a custody and community sentence—or, as its name suggests, the punishment part of a life sentence—is for the sole purpose of retribution and deterrence. In other words, its purpose is punishment. It forms a minimum of 50 per cent of the overall sentence. Any extension by the court will be based on factors such as the circumstances of the offence and the offender's previous convictions or reoffending while on licence—we added that factor at stage 2. It is right for such factors to influence punishment, but it is not right to expect a judge who has fixed the headline sentence, after taking into account whatever factors he or she thinks are relevant, to look into the future and assess the risk that an offender may pose at the end of the custody part.

The continuing assessment of risk and need by the Scottish ministers—in effect, the Scottish Prison Service—and by local authorities will form part of the sentence management process. Measures will be taken as appropriate during the custodial part of a sentence. That will allow decisions about risk to take account of all relevant factors, many of which transpire during the custody part and of which the court cannot be aware when it is passing sentence. Public protection remains a critical factor in setting the overall sentence and is key to determining whether an offender should move to the community part of a sentence.

Amendments 31 and 32 would overturn the existing provisions for setting the punishment part of a life sentence. They have worked well since they were introduced in the Convention Rights (Compliance) (Scotland) Act 2001. Substantial jurisprudence now supports the arrangement whereby the court sets the punishment part, whereas risk—public protection—is considered at the appropriate time by an independent and impartial tribunal, which is the Parole Board for Scotland.

When the Parole Board determines at the end of the custody part whether an individual can be released, what effect could the European convention on human rights—I am not joking on this occasion—have on decisions that the Parole Board makes?

We know that the Parole Board's actions must be ECHR compliant and that Phil Gallie does not regard that as a good thing, but that is where we are.

The provisions on setting the custody part of a custody and community sentence are modelled on the life sentence arrangements. That underscores the fact that we have not developed the new regime on a whim.

For the reasons that I have given, the amendments are not needed. As Bill Aitken knows, similar amendments were not supported at stage 2. I suggest that the amendments should not be supported now. Most critically, we ought not to allow the Tories to represent the bill as an attack on public protection. Public protection is properly addressed in setting the sentence. While an offender is in custody, their risk can be further assessed. I urge members to reject the amendments.

I listened to the minister with interest. I am interested in how she equates what she said with the wording in the bill. At line 30 on page 3, section 6 says:

"The custody part is that part of the sentence which represents an appropriate period to satisfy the requirements for retribution and deterrence (ignoring any period of confinement which may be necessary for the protection of the public)."

I say with all due respect that the bill says clearly that the judge must not consider any aspect of public protection. That is manifestly wrong. Surely one of the most important principles of sentencing is protection of the public.

Does the member accept what I have said, which is that judges can—and no doubt will—take public protection into account when establishing a sentence? The notion that the bill will erase public protection from sentencing is self-evidently nonsense. The headline sentence will be established. We are addressing sentence management and assessment while an offender is in custody.

That is not what it says on the tin. What the bill says is clear. If the minister and I agree about the matter, she has a clear remedy: to accept my amendments, which would impose on the bill the questions that the minister has posed. I think that most members think that public protection is apposite to the amount of time someone should spend in prison and must be a principal consideration of any sentencing approach.

My one worry about Mr Aitken's approach relates to how a judge can quantify the danger a person presents. I understand why a judge should be able to say that a vicious assault merits a seven-year sentence or that such a sentence is merited because of the nature of the victim, who could be an old-age pensioner, but on what basis can a judge possibly decide that somebody is a danger? How would a judge know that somebody will be a danger for seven years, but that they will no longer be a danger after seven years and a day?

How can a judge quantify an intangible? A judge can certainly say that an act is reprehensible and goes against the mores, morals and values of our society and that a person should get X years for committing that act, but a judge cannot possibly be qualified to say that a person will be a danger for X number of years. A person might be a danger for ever and therefore must be dealt with, but they could stop being a danger. How can a judge measure whether somebody is a danger?

I accept that when a judge imposes a sentence of, say, six years, it is impossible for them to say that three years of that sentence will be for punishment, two years will be because they are a danger and one year will be for some other factor, but on the basis of the evidence that the judge has heard or a narrative that has been presented, they can make an assessment that is based on the circumstances of the crime or offence and that is indicative of the extent to which the individual poses a clear and present danger to members of the public. My proposals must be considered on that basis. As it stands, the bill does not cover the matter.

The question is, that amendment 20 be agreed to. Are we agreed?

Members:

No.

There will be a division.

Division number 5

For: Aitken, Bill, Brocklebank, Mr Ted, Brownlee, Derek, Davidson, Mr David, Douglas-Hamilton, Lord James, Fraser, Murdo, Gallie, Phil, Goldie, Miss Annabel, Johnstone, Alex, McGrigor, Mr Jamie, Milne, Mrs Nanette, Mitchell, Margaret, Petrie, Dave, Scott, John
Against: Adam, Brian, Arbuckle, Mr Andrew, Baillie, Jackie, Baird, Shiona, Baker, Richard, Ballance, Chris, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Cunningham, Roseanna, Curran, Ms Margaret, Eadie, Helen, Ewing, Fergus, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Fox, Colin, Glen, Marlyn, Godman, Trish, Gordon, Mr Charlie, Gorrie, Donald, Harper, Robin, Harvie, Patrick, Henry, Hugh, Home Robertson, John, Hughes, Janis, Hyslop, Fiona, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, Macmillan, Maureen, Martin, Paul, Mather, Jim, Matheson, Michael, May, Christine, McCabe, Mr Tom, McFee, Mr Bruce, McMahon, Michael, McNeil, Mr Duncan, McNulty, Des, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Neil, Alex, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Robison, Shona, Robson, Euan, Rumbles, Mike, Ruskell, Mr Mark, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Swinburne, John, Swinney, Mr John, Wallace, Mr Jim, Watt, Ms Maureen, White, Ms Sandra, Whitefield, Karen, Wilson, Allan

The result of the division is: For 14, Against 84, Abstentions 0.

Amendment 20 disagreed to.

Group 5 is on repeat offenders. Amendment 21, in the name of Bill Aitken, is grouped with amendments 24, 26 and 29. Again, I draw members' attention to the pre-emption information on the groupings list.

I think that there is consensus in the chamber that recidivism is a serious problem in Scotland. Prisoners who are released early from jail frequently reoffend. It is sometimes argued that the problem demonstrates that prison does not work, but that argument is facile. If one compares the records of other countries, one finds that where a high proportion of offenders are sent to prison, there is a corresponding reduction in crime levels. Furthermore, those who are offered community service reoffend to a great extent. The bottom line is that once offenders have reached the stage of prison or community service as a direct alternative, they are usually hardened. As such, they are prone to repeat their offending behaviour.

Amendment 21 would ensure that when an individual has been sent to prison on two or more occasions within a 10-year period, he will spend the entire period of his sentence in custody. He would not spend 50 per cent or 75 per cent of his sentence in custody—he would spend 100 per cent of it in custody.

The bill's wording inhibited the amendments I could lodge in many respects. My party's manifesto policy will, of course, go further than what I have proposed, in that it will propose that repeat offenders serve increased sentences based on the aggregate of previous periods in custody. I could not lodge an amendment to achieve what we want at stage 3, as it would not have been competent and in accordance with the wording of the bill. The amendments seek to deal with the matter in another way, in so far as it is possible to do so.

Those who persistently offend have obviously not learned their lesson, so sentences imposed against a background of two or more custodial sentences within a 10-year period will mean exactly the sentence that is pronounced by the sheriff or judge. That will act as an appropriate deterrent. It will increase public safety and make it quite clear that reoffending has a consequence over and above any sentence that may be imposed by the court at the time of the further offence.

I move amendment 21.

Bill Aitken tells us that evidence from around the world suggests that the countries that lock up most of their citizens have the lowest crime rates. Well, if that trend carries on in Scotland, we will be fourth in the world behind the United States of America, Russia and England. I am not sure what evidence Bill Aitken could present to show that the USA and Russia are crime-free zones.

We are also presented with amendments that, as the Conservatives would put it, mean three strikes and the offender will be in jail for the whole headline sentence. So the Tory policy is to say to victims of an offender's second crime that the offender will be punished harder if they do it again to someone else. What kind of message is that to give to crime victims? Any justice policy that says to victims of an offence that the offender will be treated differently because they have done it only once before is extraordinary.

The message to the offender is also odd: it is that if they commit a third crime, they will get a longer custody sentence—but that is not necessarily so. Under the Conservatives' approach, an offender could serve less time in custody for a third offence than they did for a first or second offence, because the third offence is different. The Tories do not want to spin that.

Bill Aitken said that the amendments would deter repeat offending, but there would be no deterrent for an offender who committed a crime after being in prison; it would happen only if they committed a crime again and again. That is extraordinary.

The message that we should be sending out is that if someone has committed an offence, we will do what we can to ensure that they do not commit a further crime—by making prison work in the first instance. That is why the essence of the bill is to put rehabilitation on the statute book as part of the sentence. Bill Aitken's amendments would undermine that. They would give the wrong signal to offenders and they would let down the victims of crime.

Bill Aitken gave us déjà vu with his group 4 amendments, but the amendments in group 5 are not about anything that came before the committee for its consideration, so the proposed measures have not undergone any parliamentary scrutiny at all. Bill Aitken's suggestion that the amendments are about his party's election manifesto is probably closer to the truth. It is disappointing that we are being treated in this way.

Amendments 21, 24, 26 and 29 seek to insert a new structure into the bill that would mean full-term custody for offenders who have served two or more custodial sentences in the 10 years prior to their latest conviction. No one is arguing that prison does not work. We say that it is not the whole picture and that it cannot do everything. To say that prison does not work is a counsel of despair. It is like saying that we can do nothing and that we just have to live with it.

There are positive examples of people working with offenders in the prison system to address their literacy issues and other problems, to afford them the opportunity to move on when they go back into the community. Prison is part of the picture, but not the whole picture.

One of the problems with Bill Aitken's plan is that it is arbitrary and it will create anomalies depending on when the first sentence was imposed. For example, if a prisoner's second sentence was imposed nine years and 11 months previously, the measures would apply, but if the second sentence was imposed 10 years and one month previously, they would not apply. Why should there be a difference for the sake of a couple of months?

Bill Aitken is in the luxurious position of being able to advocate something without having to work out how he would deal with the consequences of such a policy. Given the number of uncertainties, the consequences would be difficult to predict, but we can deduce that, given the proportion of prisoners involved and the increase in the prison population, if all prisoners served their full custody period in detention, there could be a sizeable impact on the prison population within a few years.

Is the minister's position that, if the interests of justice in Scotland, the interests of victims and the protection of wider society require more prison capacity, she would rather dodge the issue and find complicated legislative compromises in order to avoid that solution?

I hesitate to tell Annabel Goldie not to be ridiculous, but her intervention was entirely ridiculous. We have said that the bill as it stands has consequences for prisoner numbers and that we recognise that that has implications for resources. We say that addressing offending behaviour is partly about custody in prison and partly about what we can do in the community, through work on rehabilitation. Both approaches have an important role to play. Members cannot pluck figures out of the air and claim to have a policy when they have not worked through the consequences and benefits of that policy.

We can deduce from the proportion of prisoners involved and the increase in the prison population that the amendments would have an impact on numbers. In reality, there is no need for the amendments. I disagree slightly with the line that Jeremy Purvis took. The court already has at its disposal a mechanism for punishing persistent offenders—it is called sentencing. The overall sentence that the court hands out will take into account all the matters that the court thinks are relevant, such as the nature of the offence, the offender's history and previous convictions. In addition, section 6(4) provides details of the matters that the court may take into account when considering whether to extend the custody part of the sentence beyond the 50 per cent minimum. They include the offender's previous convictions.

The custody and community structure has received widespread support, in recognition of the fact that there needs to be a community element to the sentence during which offenders can build on work that was begun in custody. That is designed to reduce reoffending by easing the transition from custody back into the community and ensuring that a number of conditions are placed on the community licence. Where restrictions are assessed as necessary, they will be imposed, but at the same time support will be offered, where required. Only through a combination of punishment in custody and rehabilitation in the community can we hope to address offending behaviour and to reduce reoffending.

This is not a simple matter, but it is one to which people must give commitment and energy, rather than glib solutions that do not address the real problem. We are not claiming that reoffending will cease overnight—that would be naive. We are saying that by providing the right mix of punishment and rehabilitation, we have a better chance of getting offenders to turn around their lives. Success will come through maximising the amount of work that is done during the custody part of the sentence, so that more progress can be made when they go out into the community on licence.

For many offenders, the issue will be to direct them away from their old ways by providing supports and some basic help. For others, more stringent interventions will be needed. Our plans allow for both eventualities and all scenarios in between. Surely that is a much more innovative and sophisticated approach than prison, prison and simply prison, and not addressing the core issues that the bill addresses. I urge the Parliament to reject the amendments.

Once again, there has been some illogicality in the arguments that our opponents have made. I will deal first with the issues that Jeremy Purvis raised. He is correct to say that the amendments would result in more people spending more time in prison. I thought that in some respects he might applaud that—he has often spoken in the chamber about the fact that the rehabilitation process in prisons seems to be limited; the amendments would give prison authorities the opportunity to work longer with offenders and, we hope, achieve some beneficial results. I do not accept the argument that the member makes. He will be aware that the Criminal Procedure (Scotland) Act 1995 provides for extended sentences, which would meet in many instances the requirement that rehabilitation be provided in prison.

The main difference between Conservative members and Labour and Liberal Democrat members is that we speak for victims.

If Bill Aitken spoke for victims, he would have taken a more positive approach to the measures that we introduced to address, at an early stage, antisocial behaviour, which can become offending behaviour. There is no lack of commitment to victims from Labour and Liberal Democrat members. It is an insult for the member to suggest otherwise.

The minister seeks to rewrite history. Despite what she and many of her colleagues repeat time and again, we supported the Antisocial Behaviour etc (Scotland) Bill—we opposed only two parts of it. The minister is entering into the realm of believing that the more often a lie is told, the more readily it will be believed. She is trying to mislead the chamber in that respect.

The minister is correct: there would eventually be a cut-off point. She referred to what would happen to somebody who reoffended after nine years and 11 months and what would happen to somebody who reoffended after just over 10 years. Such a problem will always exist. In road traffic cases, for example, we have it if somebody has 12 points on their licence as a result of a speeding offence just within a three-year period. The problem is inevitable, so the minister's argument does not hold any water.

Of course there are consequences of what we propose, including consequences for the prison estate. We recognise that, and we are prepared to invest money in the prison estate to ensure that there are adequate prison facilities.

The fact is that, as I said, we speak for the victims. I simply do not know for whom other parts of the chamber speak.

The question is, that amendment 21 be agreed to. Are we agreed?

Members:

No.

There will be a division.

Division number 6

For: Aitken, Bill, Brocklebank, Mr Ted, Brownlee, Derek, Davidson, Mr David, Douglas-Hamilton, Lord James, Fraser, Murdo, Gallie, Phil, Goldie, Miss Annabel, Johnstone, Alex, McGrigor, Mr Jamie, Milne, Mrs Nanette, Mitchell, Margaret, Petrie, Dave, Scott, John
Against: Adam, Brian, Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baker, Richard, Ballance, Chris, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Cunningham, Roseanna, Curran, Ms Margaret, Eadie, Helen, Ewing, Fergus, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Fox, Colin, Glen, Marlyn, Godman, Trish, Gordon, Mr Charlie, Gorrie, Donald, Harvie, Patrick, Henry, Hugh, Home Robertson, John, Hughes, Janis, Hyslop, Fiona, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, Macmillan, Maureen, Martin, Paul, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, May, Christine, McCabe, Mr Tom, McFee, Mr Bruce, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Neil, Alex, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Robison, Shona, Robson, Euan, Rumbles, Mike, Ruskell, Mr Mark, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Swinburne, John, Swinney, Mr John, Wallace, Mr Jim, Watt, Ms Maureen, White, Ms Sandra, Whitefield, Karen, Wilson, Allan

The result of the division is: For 14, Against 85, Abstentions 0.

Amendment 21 disagreed to.

Amendment 22 moved—[Bill Aitken].

The question is, that amendment 22 be agreed to. Are we agreed?

Members:

No.

There will be a division.

Division number 7

For: Aitken, Bill, Brocklebank, Mr Ted, Brownlee, Derek, Davidson, Mr David, Douglas-Hamilton, Lord James, Fraser, Murdo, Gallie, Phil, Goldie, Miss Annabel, Johnstone, Alex, McGrigor, Mr Jamie, Milne, Mrs Nanette, Mitchell, Margaret, Petrie, Dave, Scott, John
Against: Adam, Brian, Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baker, Richard, Ballance, Chris, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Cunningham, Roseanna, Curran, Ms Margaret, Eadie, Helen, Ewing, Fergus, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Fox, Colin, Glen, Marlyn, Godman, Trish, Gordon, Mr Charlie, Gorrie, Donald, Harvie, Patrick, Henry, Hugh, Home Robertson, John, Hughes, Janis, Hyslop, Fiona, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, Macmillan, Maureen, Martin, Paul, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, May, Christine, McCabe, Mr Tom, McFee, Mr Bruce, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Neil, Alex, Oldfather, Irene, Peacock, Peter, Pringle, Mike, Purvis, Jeremy, Robison, Shona, Robson, Euan, Rumbles, Mike, Ruskell, Mr Mark, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Swinburne, John, Swinney, Mr John, Wallace, Mr Jim, Watt, Ms Maureen, White, Ms Sandra, Whitefield, Karen, Wilson, Allan

The result of the division is: For 14, Against 84, Abstentions 0.

Amendment 22 disagreed to.

Amendment 4 moved—[Johann Lamont]—and agreed to.

Group 6 is on sentence to be served in custody or before release on curfew licence. Amendment 23, in the name of Bill Aitken, is grouped with amendments 25, 52, 53, 55 to 59, 62, 27, 28, 30, 34, 35 and 13. I draw members' attention to the three pre-emptions that are itemised in the groupings list.

In many respects, this group of amendments encapsulates the principal arguments relating to the entire bill.

It is perhaps important and certainly appropriate that we review why we are debating the matter today. For some time, there has been considerable unease about the sentencing process in Scots law. It has been criticised, rightly, for being unclear, confusing to the victims and public, and, indeed, dishonest. Matters have been further complicated by the intervention of the European convention on human rights, which has resulted in the early release that is available under the existing law being granted automatically, regardless of whether the offender has behaved himself in jail or shown any contrition.

Before anyone else says it, let me make it quite clear that the most recent Conservative Government certainly contributed to the development of the present situation by increasing the proportion of sentences by which a prisoner could be released early. However, a number of important points should be made. First, 12 years ago, remission had to be earned—it would be granted only if the prisoner had behaved himself, shown some contrition, co-operated and demonstrated that he was intent on leading a reasonable life once he was released. However, the fact that prison governors do not qualify as independent tribunals under article 6 of the ECHR meant that it became no longer possible for them to dock or to curtail prisoners' remission, regardless of how the prisoners behaved while they were in custody. Frankly, that made the whole situation ludicrous.

I have criticised the Conservative Government, but I must stress that it had realised the error that it had made and was making efforts to correct it when it lost office in the 1997 general election. It ill behoves members of the Executive parties to criticise that Government for making a mistake when, some 10 years on, they have still failed to take the remedial action to which the Conservatives were committed. There is a degree of hypocrisy in the accusation that the Conservatives are responsible for the present situation.

Over the past few years, there has been a succession of serious cases involving crimes committed by offenders on early release. As a result of constant pressure from Annabel Goldie, Margaret Mitchell and me, the Executive was reconciled to the fact that at last something had to be done. It is truly depressing that the bill that we are considering today is the result of the Executive's deliberations, because it utterly fails to deal with early release.

The Executive claims that, for the first time, every offender will serve their sentence in its entirety, but when we read the small print, we find that that is not the case. The public perception of a sentence is a period spent in custody. The public demand that a sentence that is pronounced from the bench should be the period that is spent in prison—no ifs, no buts, no maybes. However, that will simply not be the case and it is quite wrong for the Executive to claim that it will be.

At present, for example, someone who receives a six-year sentence will serve four years. That is bad enough but, under the proposals before us today, in many instances such a sentence will mean that the offender serves three years. Frankly, I am not confident that many prisoners will serve 75 per cent of their sentences, given that the bill states quite clearly that there must be a presumption in favour of 50 per cent.

All that the Executive had to do to restore public confidence was to introduce a bill under which the sentence imposed was the sentence served. That would have removed the impediment of the application of the ECHR and would have let the public and the victims of crime know exactly what had happened. Instead of adopting such a straightforward and simple approach, the Executive has put forward a hotch-potch of complex and convoluted proposals that will simply cause more confusion. It cannot claim with any credibility that the bill will end early release.

It is perhaps even more ludicrous that it will now be possible for an offender not only to get early release or, indeed, very early release, but to get super-early release, whereby they will serve only a quarter of their sentence in jail. Recently, there was the appalling case of a man who deliberately and systematically defrauded a breast cancer charity of a substantial sum of money. He received a sentence of 18 months—some people might have thought that to be on the lenient side—but, under the Management of Offenders etc (Scotland) Act 2005, he was released after four and a half months. How on earth can that be seen as deterring criminality?

Will the member say whether it remains Conservative policy—there have been three policies in the past few months—that an offender should serve one sixth of their sentence on licence in the community, which would mean that a person who received a sentence of two years would be out on early release for about four months?

I repeat what I said to the minister: the bill's wording inhibited how I could lodge amendments. I accept that our approach might appear inconsistent to Mr Purvis, but I could not lodge amendments in any other way. We retain the position that we support earned remission of one sixth of the sentence.

How on earth will super-duper early release deter a person from committing financial crime? The Executive will argue—and I accept—that it is unlikely that prisoners who are guilty of violence or serious sexual assaults will be released, but there will be no deterrent to financial crime if offenders are to serve only a quarter of their sentence. That is a serious issue.

The proposals that are before the Parliament are little short of a disgrace and represent an attempt to hoodwink the electorate into thinking that the Executive has taken action on early release. They provide an incentive to unscrupulous people who would seek to commit financial crime.

I am concerned that inadequate resources are being provided to local authorities for the supervision of offenders during the community part of their sentence. Does any member seriously think that there will be supervision? The vast majority of offenders will be released subject to one condition only: that they behave themselves. It is sad, but experience shows that people often do not behave themselves.

If any member seriously thinks that the bill will improve matters in the short, medium or long term, they must also believe in Santa Claus. The bill verges on the mendacious. The approach will be hopeless at coping with serious criminals. The bill is dishonest, because early release is not ending.

I move amendment 23.

I will speak briefly to Executive amendment 13, but first I address the amendments in Bill Aitken's name, as I will not have another opportunity to do so.

Bill Aitken might have a charming and easy manner, but what he said was remarkably offensive. He implied that the people who are committed to addressing crime and disorder in our communities want to lie to and be dishonest with the public. He should reflect on his comments.

When we said that we would end automatic unconditional early release, we also committed to replacing the discredited system with measures that would create a more flexible approach to sentence management. We wanted measures that would allow for the right mix of punishment, deterrent and rehabilitation, allow the courts to impose a longer period in prison to punish a particularly serious crime or take account of persistent reoffending, and allow offenders to be managed on the basis of the risk they pose and not the length of sentence imposed by the court. That is the Executive's approach and it is dishonest of Bill Aitken to suggest otherwise. He seems to prefer a system in which, after someone has done their time, they go out into the community without conditions.

In the current system, a person who is sentenced to four years gets out after two, with no conditions. In the proposed new system, the person will serve two years in prison, during which time the risk they pose will be assessed. If they are assessed as being able to be released, they will spend two years in the community, with licence conditions that will allow them to be recalled. Bill Aitken will remember that at stage 2 we set out a more rigorous approach to recall.

Amendment 23 and the other amendments in Bill Aitken's name in group 6 reflect a lack of thought. Everyone understands that automatic early release was introduced as a response to prisoner numbers. There were no easy answers then and there are no easy answers now.

Bill Aitken's position at stage 2 was that the custody part of the sentence should be 90 per cent, but now he says that it should be 85 per cent, which suggests that, rather than addressing a serious problem, he is thinking of a number, and then another number, as if the matter were a child's game. The issue requires far more thought than that.

We could make the facetious point that Bill Aitken is now softer on crime than he was at stage 2, but the issues are more serious than that. I would argue that what we are suggesting is a far more serious approach to a difficult problem. We want a flexible regime that takes account of modern sentence management principles and that ensures that the work that has been started in custody can continue and be developed during the community part of the sentence to maximise its effects on public safety and rehabilitation.

Bill Aitken talks about the offender being rewarded for good behaviour. However, we know about circumstances in which people behaved in prison but caused problems in the community after they were released. We are now talking about risk assessment and management of offenders in the community after they have served the custody part. I would argue that that will enhance community safety.

Will the minister give way?

When I have finished these points, I will take an intervention.

Bill Aitken talked about home detention curfew. Home detention curfew has been established as being effective in a very small number of cases. However, we have clearly said that, because there will be a big change in the process, we will not reintroduce home detention curfew until the system has bedded in. We have also accepted that it would be important for the Parliament to return to the issue if we were to reintroduce home detention curfew and that, therefore, that would require to be done by an affirmative order.

Would the minister care to comment on the existing provision for extended sentences? At present, someone could be given a determinate sentence—albeit subject to early release—but, thereafter, be subject to an extended sentence so that, in effect, what would happen would be exactly what she proposes in the bill. The power to do that already exists.

Of course, the provision for extended sentences will remain, but Bill Aitken will recognise that it will be used particularly for serious offenders, such as sexual offenders, who pose a greater risk. What we are saying is that such an approach could be used for far more offenders than would be the case under his proposal.

Members may ask why the maximum duration of the custody part has been set at 75 per cent of the sentence. We believe that that is necessary in order to strike the right balance. As I said earlier, it allows the court, in exceptional circumstances, to reflect publicly the fact that a crime is particularly heinous or that an offender is so persistent in his or her offending that the minimum custody period is not enough in their case. It also allows the Parole Board to deal properly with offenders who are assessed as still posing a high risk at the end of the custody part, and it leaves a reasonable amount of time for restrictions to be effective and for rehabilitative work to continue in the community.

The key question regarding these amendments is whether they would create a system that allowed in each case the right mix of punishment, risk assessment and management, joined-up working, and the opportunity for the prisoner to break the cycle of reoffending.

The minister is very much on the defensive on this issue. She recognises that the system of early release has been discredited. That was recognised by the Tory Government in 1997.

Why has the Labour Government or the Scottish Lib-Lab pact not addressed the issue before now?

Through the bill, we are addressing a problem that has been identified in our communities. The quality of the debate from the Tories is not a measure of the importance of the debate to our local communities. The simplistic and trivial way in which Bill Aitken has plucked a number out of the air indicates how seriously the Tories take the matter.

The requirement to serve part of the sentence in the community is not a soft option; it is a smart option. Evidence shows that we have a much better chance of preventing many offenders from returning to crime if we tackle the underlying causes of their criminality. It is significant that the bill is being attacked both by those who want nobody to go to jail and by those, on the Tories' side, who want to sound tough on crime. To be tough on crime is to address the real issues. It is to punish, but it is also to consider ways of turning offenders round. That is what the bill seeks to do.

We want the custody and community parts of sentences to be planned and joined up. We want the community part and the licence conditions to be taken seriously, and we want prisoners who have been released from custody to understand that the community part is an important part of the proposal. Therefore, resources must be identified for both the custody part and the community part.

Amendment 13 seeks to amend section 48(4) in relation to the order-making power in section 6B to alter the minimum proportion of the custody part of the sentence. Of course, it does not affect the 75 per cent maximum custody period, which is set in statute. The proposed changes reflect the advice that we received at stage 2 from the Subordinate Legislation Committee, which we are always delighted to please. Acting on that advice, we propose to make an order that is made under the powers subject to the Scottish Parliament's affirmative procedure.

As far as these issues are concerned, I have no reason to be defensive about the bill. The bill genuinely seeks to address all the issues that must be confronted in communities where serious offending is taking place. We know that we need to tackle such offending early, but we also realise that by sending offenders to prison we can both mark the seriousness of their offences and, if they have chaotic lives, give them help before they go back to the community.

The Tories have clearly given this matter very little thought and we must not allow them to present this serious measure in any other way. I urge the Parliament to reject all the amendments in the name of Bill Aitken and to support amendment 13.

Bill Aitken said that the bill is confusing. However, the only aspect that has confused me over the past three months is the fact that the Conservatives have taken three policy stances on this issue. First, they advocated a system in which prisoners could get out one month in every six; next, they proposed that the custody part of a sentence should be increased to 90 per cent; and, now, they are suggesting that the custody part should be 85 per cent. From a sedentary position, Phil Gallie said that they had been thinking about the matter for 10 years. If they go on in this fashion, in 10 years' time, they will be suggesting that people should serve 5 per cent of their sentence in jail.

All this masks the Conservative policy of releasing people from jail early. Of course, the Tories want to give the impression that, under their proposals, there will be no early release for anyone but, in response to my intervention, Mr Aitken confirmed that, under their policy, people in prison could be out on early release one month in every six. As a result, someone on a two-year sentence could be out for about four months. However, the Tories cannot guarantee that that person will not commit a crime in that time.

The only element of mendacity is the Conservatives' repeated claim that someone serving part of their sentence in the community would never commit an offence. However, they could not guarantee that at stage 2; they cannot guarantee it today; and, in fact, they will never be able to guarantee it. Notwithstanding that, the Tories seek to claim that if someone on licence commits an offence, it is the fault of the Government or the system. That is simply not the case—it is the offender's fault. However, they acknowledge that a sentence should contain some element of rehabilitation, which is why they propose to allow prisoners out of jail one month in every six.

That has to be earned.

In response to Mr Aitken's comment from a sedentary position, I say that prisoners would simply have to demonstrate the lowest level of good behaviour to allow them to be released early. However, if they committed another offence during their period in the community, would that be the fault of the Conservative policy or the offender?

The Tory position is plainly nonsense. The Tories are seeking to spin something that is not their policy and does not match reality. As I have said, that is the only element of mendacity that we have witnessed this morning.

Before I ask Bill Aitken to wind up on this group of amendments, I wonder whether the minister wishes to say anything further. Are you content, minister?

Do not encourage me, Presiding Officer.

I sense your reluctance to respond.

Those two contributions were very interesting. With respect to Jeremy Purvis, he is a member of an Executive party and has therefore not had any of the Opposition's experience of the parliamentary system. As I made it clear earlier, the amendments in my name have to be tailored to the bill before us if they are to be competent under the standing orders of the Parliament. That is the only way in which I can bring these very important matters to the chamber's attention.

Given Mr Aitken's great expertise in the parliamentary process, will he explain why these amendments did not surface at stage 2? If he had lodged them then, we could have had a considered discussion of repeat offending and early release.

I did not lodge these amendments then for the same reason why, time and again, the Executive lodges last-minute—and sometimes manuscript—amendments to every aspect of legislation. The simple fact is that the more one looks at legislation, the more one sees ways of improving it. That is why I have now lodged these amendments. It is not good enough for the minister to keep on harking back to the fact that there is an inconsistency in the amendments. I have explained why they are inconsistent.

Will the member take an intervention?

I really have to make a little bit of progress. We will see how we get on later.

Mr Purvis asks whose fault it is when someone commits a crime and he answers that, of course, it is the fault of the offender. He is quite right, but there is also a problem with the existing sentencing and penal policy. It may be the offender's fault that he committed the offence, but in many instances we have to ask what gave him the opportunity to commit the offence. The answer is the system of early release. It is as simple as that.

One does not need parliamentary experience to be consistent in one's views. Mr Aitken's policy is for prisoners to be out of jail for one month out of every six. He should be consistent in that and should not posture.

I have clearly rattled Mr Purvis's cage. I say to him that we have to acknowledge the parliamentary procedures, according to which we cannot lodge amendments that go against the bill. I can assure him that, in the weeks ahead, there will be every opportunity to discuss and debate Conservative party policy. I am confident that that policy will be accepted overwhelmingly by the electorate. We look forward to hearing Mr Purvis's contribution when he hears our full policy.

I am grateful to Mr Aitken for explaining the dilemma that he is in with procedures. However, before we vote on the amendments in his name, will he tell us whether he actually believes in them?

Yes, I believe in the amendments, which would mitigate the damage caused by the bill. As I have explained consistently all morning, the amendments that we have lodged do not reflect our preferred policy options, but we are inhibited and constrained. I say to Mr Purvis that it was not me who worded the bill but his Executive.

The Executive's principal arguments remain the same. What is being presented to the chamber is not the end of early release but simply an attempt to pretend to the electorate that it is the end of early release. That is little short of disgraceful.

The question is, that amendment 23 be agreed to. Are we agreed?

Members:

No.

There will be a division.

Division number 8

For: Aitken, Bill, Brocklebank, Mr Ted, Brownlee, Derek, Davidson, Mr David, Douglas-Hamilton, Lord James, Fraser, Murdo, Gallie, Phil, Goldie, Miss Annabel, Johnstone, Alex, McGrigor, Mr Jamie, Milne, Mrs Nanette, Mitchell, Margaret, Petrie, Dave, Scott, John
Against: Adam, Brian, Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baird, Shiona, Baker, Richard, Ballance, Chris, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Cunningham, Roseanna, Curran, Ms Margaret, Eadie, Helen, Ewing, Fergus, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Fox, Colin, Glen, Marlyn, Godman, Trish, Gordon, Mr Charlie, Gorrie, Donald, Harper, Robin, Harvie, Patrick, Henry, Hugh, Home Robertson, John, Hughes, Janis, Hyslop, Fiona, Ingram, Mr Adam, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, May, Christine, McCabe, Mr Tom, McFee, Mr Bruce, McMahon, Michael, McNeill, Pauline, McNulty, Des, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Neil, Alex, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Robison, Shona, Robson, Euan, Rumbles, Mike, Ruskell, Mr Mark, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Swinburne, John, Swinney, Mr John, Turner, Dr Jean, Wallace, Mr Jim, Watt, Ms Maureen, White, Ms Sandra, Whitefield, Karen, Wilson, Allan

The result of the division is: For 14, Against 89, Abstentions 0.

Amendment 23 disagreed to.