Management of Offenders (Scotland) Bill: Stage 1

Part of the debate – in the Scottish Parliament at on 7 February 2019.

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Photo of Liam Kerr Liam Kerr Conservative

I understand the cabinet secretary’s point, which is reasonable. Equally, I am sure that he will understand the point, which I will make several times in my speech, that there has been a missed opportunity, because we have three standalone things happening in one bill that could have been better dealt with separately.

Part 2 of the bill could also easily have commanded its own separate bill and inquiry. The move to reduce—sometimes—the length of time for which one is required to disclose convictions makes sense, as does the improvement in the clarity of legal terms. We know that getting a job and making that contribution to society is one of the best routes out of offending behaviour. I recognise the cabinet secretary’s comments on that. It is difficult to strike the appropriate balance between the right of society or an employer to know about prior convictions and the ability of a person with convictions to move on.

It was right to refer to the regime change in England and Wales for reference and it is right to ensure that the change applies only to the basic disclosure regime. As the committee convener said, it is also right that the higher-level disclosure system is not being considered at this stage. However, I note with concern that there are plans for reform in that area. I flag up to the cabinet secretary that the report states:

“the absence of any proposed changes to the higher level disclosure system was welcomed by a number of witnesses”.

It certainly was and I will take a great deal of persuading to agree to downgrade any such protections around higher-level disclosures if that comes to us for consideration.

It is a little unfortunate that part 1, which is the crux of the bill, is not a separate bill. Part 1 concerns the use of and provision for the electronic monitoring of offenders. I reiterate that we will support the bill—and by extension part 1—at this stage, but I must be clear and unequivocal that I did not take that decision lightly, and I know that my party colleagues will not take it lightly this afternoon. We support the bill at stage 1 only on the strict understanding that we see the opportunity to improve it at stages 2 and 3. I put down the marker that, if we do not see at stages 2 and 3 amendments that go far enough, we will not support the bill.

The Law Society of Scotland put it succinctly:

“Maintaining public safety is essential in whatever way that electronic monitoring is intended to be used”.

That must surely be the starting point: that we enhance and protect public safety. I need not remind anyone in the chamber of the reasons why the bill process was delayed and further evidence was taken. The shocking, unprovoked and devastating murder of Craig McClelland by James Wright, who had 16 convictions, was out on home detention curfew, had tampered with his tag and had roamed around uninhibited for six months, provides vital and awful context to the debate and the bill. It raises issues about not just home detention curfew, but the wider use of tagging for all underlying orders and licences.

To digress slightly, the cabinet secretary will recall that Daniel Johnson, Willie Rennie and I wrote to him in November last year to demand an independent inquiry into that case. The family wrote to the Lord Advocate yesterday, as I do not think that they have heard anything, so perhaps the cabinet secretary will take the opportunity in closing to update the family and the Parliament.

As we have heard, against that background, two reviews of the home detention curfew regime were conducted. They made various recommendations, which included strengthening the risk assessment process for HDC. The cabinet secretary told the committee that he had ordered a presumption against HDC for violent criminals and that he would consider the option of putting that in statute. The committee’s report picks up the fact that whether the presumptions should be statutory exclusions will be examined before May. That is too long to wait. The bill is going through now, and we are being asked to pass it without knowing what is coming and whether the full protections are in place.

I understand that any new offence would apply only to HDC. As the bill stands, an offender who has another underlying order or licence could cut off their tag without automatically committing an offence, because the offence would hinge on the underlying order. I do not think that victims will accept that; that needs to change. Victim Support Scotland, Community Justice Scotland and Positive Prison? Positive Future were crystal clear to the committee that there must be a swift and visible zero-tolerance approach to breaches. When a breach occurs because of the removal of or tampering with the electronic tag, it must be an offence, regardless of whether the person has a custodial or community sentence. I heard the cabinet secretary’s comment that we will learn more at stage 2, but the amendments that I refer to must be agreed to at stage 2, and the public safety angle must be suitably scrutinised.

In the committee, I was terribly exercised—I was not alone in this—by the lack of the risk assessment tool at this stage. We heard that the Government agrees that the guidance document requires extensive review to give more assistance to those who are charged with undertaking the assessment on releasing prisoners, but the guidance is not ready. The cabinet secretary will remember that the committee looked at that; I do not understand the situation. Surely, before we do anything to increase the numbers who are on electronic monitoring, we must have a robust and trusted assessment tool. That needs to be addressed before the bill is passed.

On the decision-making process, I will raise something that I struggled to understand throughout. No matter whom or which agency I asked whether public protection, punishment or rehabilitation is most important in considering release on HDC, I got an equivocal answer. No one said that public protection is paramount, which I do not understand. The cabinet secretary said that he would consider whether public protection should be given greater prominence in the bill and I can help—it should be.

My overriding concern, particularly because the bill remains unchanged from its initial form before all the learnings that came from tragedy, is that the cabinet secretary’s predecessor introduced the bill in an atmosphere of—dare I say it—complacency and with a view to extending tagging to inappropriate cases, which was perhaps driven by the simple wish to empty prisons.

The landscape has changed fundamentally, and our continued support is predicated on reassurance that the bill is about getting the regulation of tagging right and protecting public safety. We must put electronic tagging on a basis that can command public support and we must learn the lessons of tragic cases like that of Craig McClelland.

Following a good inquiry, the committee heard many promises from the cabinet secretary. Those promises must be kept, and we must see the further changes that we are calling for. If, over the course of parliamentary scrutiny, it looks like it will be the opposite, we will vote against the bill.