The next item is consideration of the stage 3 proceedings on the Management of Offenders (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, the marshalled list and the groupings of amendments.
I remind members that the division bell will sound, and that proceedings will be suspended, for five minutes for the first division of the afternoon. After that, there will be a 30-second vote. Thereafter, there will be a one-minute period for voting after the first division following a debate. Members who wish to speak in a debate should press their request-to-speak buttons as soon as I call the group, or as soon as possible after that.
The Presiding Officer:
Group 1 is on part 1 terminology. Before I call the cabinet secretary, I point out that, throughout the group, there are amendments that, if agreed to, would pre-empt other amendments in the group. In the interests of time, I do not propose to mention the pre-emptions on each occasion that they occur—I refer members to the groupings for pre-emption information. Amendment 4, in the name of the Cabinet Secretary for Justice, Humza Yousaf, is grouped with the amendments as shown.
At stage 2, I supported Daniel Johnson’s amendments, which removed the term “offender” from part 1 of the bill. The Government listened to the concerns that were expressed and supported the changes so that nobody would feel stigmatised by the language of the legislation. At stage 2, when I signalled that I supported the principle behind Daniel Johnson’s amendments, I indicated that the Government would need time to reflect on the technical impact on the drafting of the bill, and that it might need to revisit the terminology for readability and workability.
As things stand, the label “relevant person” does not work, because it is undefined. As we reflected on how to address that problem in a way that would be consistent with the Justice Committee’s view at stage 2, we realised that there is, in fact, no need at all for the bill to apply labels to people who are subject to electronic monitoring. We need not call them “relevant persons”; they are simply persons who happen to be subject to a monitoring requirement. The amendments in my name therefore get rid of the labels altogether, with only a few exceptions where the label “monitored person” is used to distinguish the person who is subject to a monitoring requirement from the person who is designated to carry out the monitoring.
Amendment 145 is a clarificatory amendment to put beyond doubt that references to disposals in part 1 are not confined to the final disposals in a case.
I invite members to support the amendments in my name in the group, and to reject the amendments from Liam Kerr, which would reinstate the word “offender” in direct contradiction of the decision of the Justice Committee at stage 2. To be clear, using the label “offender” does nothing to improve the bill’s technical precision and has no other legal effect.
I move amendment 4.
All my amendments in the group seek to reverse Daniel Johnson’s terminology amendments at stage 2. Parliament cannot fail to have been aware of the considerable public outcry when those amendments were agreed to at stage 2. It is important that the full chamber has an opportunity to reflect on the committee’s decision.
This is the Management of Offenders (Scotland) Bill. Its purpose is to deal with people who have offended—that is, committed a crime. Laws mean something and they should be clear. If we are referring to offenders, we should call them “offenders”. Parliament will be interested to know that the key argument that was presented in committee is that labelling people as offenders after they have served their time does not help rehabilitation. I understand that point. However, most of these provisions deal with criminals before they have completed their sentence. The bill talks about how we manage those who are in the system, not so much those who have completed their sentence.
As I presume that Mr McArthur will speak later, I will not—I want to move on.
Finally, there is no doubt that many victims of crime already feel that more is being done to support offenders than to support those who have suffered. We cannot, and should not, airbrush from history the fact that a crime—an offence—has been committed. For those reasons, I ask Parliament to recognise that an offender is an offender, and to vote in favour of my amendments.
I move amendment 4A.
As the cabinet secretary said, labels do not help. Good legislation should have well-defined terminology and should not need to refer to people by anything other than the term “people”. For that reason, we should support the Government’s amendments and reject the Conservative ones.
I was not intending to observe the 60-second rule. I was not even intending to speak until Liam Kerr’s invitation to do so.
The other important fact is that extending these provisions to people prior to any ruling from the court would be impossible were it not for the redefinition that the cabinet secretary has proposed. We will certainly support his amendments.
I have nothing much to add other than to thank colleagues for their contributions.
I will say to Liam Kerr something that I have said since taking on this role a year ago—we should always be driven by the data and by the experts who are in front of us. I know that he has a lot of respect for organisations such as the Wise Group and the many other groups that work with those who have committed crimes in the past. Those groups tell us that language is important. This change in the legislation will not make it illegal or criminalise anybody for using the word “offender”; they can use that word in their daily discourse if they wish to do so. However, as legislators, we have a responsibility to listen to experts and to change the law accordingly. I am delighted to have the support of—it seems—the majority of parliamentarians to do that.
The Presiding Officer:
The result of the division is: For 85, Against 27, Abstentions 0.
Amendment 4 agreed to.
Before I move on to amendment 7, I point out that there are a huge number of amendments that pre-empt other amendments. At this point, I ask Mr Kerr to say whether he wishes to move amendments 8, 10, 12 and 14.
With your permission, Presiding Officer, I will speak in response to that, rather than just say yes or no.
Those amendments in my name seek to make the same changes as amendments 4A and 4B sought to make. I maintain that that is the right thing to do for certainty and semantics, but it is clear to me that only the Scottish Conservatives are with me on that. There are extremely important debates to have this afternoon so, to ensure that there is time for that and given that my comments to amendments 4A and 4B are on the record, I will not move my further amendments in the group or any similar ones.
The Presiding Officer:
Thank you, Mr Kerr. I highlight that any other member is entitled to move any of the amendments at the point at which they are reached. To ensure that that can happen, I would normally call each amendment in turn but, in these exceptional circumstances in which we have a large number of amendments that are all directed at the same issue, I propose to try to speed up the process slightly. The amendments about this particular subject appear in five blocks, and I will take the same approach for each block of amendments.
Does any other member wish to move any of the amendments 8, 10, 12 or 14?
The Presiding Officer:
As no one wishes to move any of those amendments and they all do the same thing, I now invite the cabinet secretary to move amendments 7, 9, 11 and 13 en bloc.
Amendments 7, 9, 11 and 13 moved—[Humza Yousaf]—and agreed to.
“On the information and evidence that criminal justice social work receives to inform our risk and needs assessment ... what is sorely lacking is the summaries of evidence that are narrated in court.”
He went on:
“Without it, we are entirely reliant on the offender’s version of events.”—[
, 8 May 2018; c 8.]
We know that summaries of court evidence are critical to an objective and accurate risk assessment and that without them, social workers will have less information than they should have about how decisions may affect victims. My concern is that victims and the public are unnecessarily put at risk because the right information is not being shared.
I lodged an identical amendment at stage 2, when members had several concerns. John Finnie asked what status a summary would have. The answer is that it would have only the weight that the social workers preparing their risk and needs assessment attributed to it. The definitive document remains the risk and needs assessment that is prepared by criminal justice social work.
That is a reasonable point, and I am grateful for it. At stage 2, several members raised the concern that the court system would not have the resources to prepare a summary. I understand that point, but surely if something is the right thing to do, it is up to the Government to assess what resources the courts would need, especially for such a crucial bit of communication between the courts and criminal justice social work.
The cabinet secretary said in committee that there is no mechanism across all court business for routinely collecting and transmitting such evidence. Surely that is the problem, and that is what my amendment seeks to address. If agreed to, it would be up to the court to decide what form the summary took, and I am sure that it could create a format that would work best for it.
My amendment seeks to ensure that social workers have as much evidence as practical in front of them before making crucial risk assessments, which will inform judges’ decisions about whether an offender is safe to be on our streets.
I believe that I have answered the challenges, and I seek Parliament’s approval of the amendment.
I move amendment 144.
I support the amendment. The committee heard one recurring theme throughout its evidence taking and, indeed, in relation to other issues that it has dealt with in the past year or so: the lack of information and data, especially from, but also to, the courts. I think that the amendment makes good provision for ensuring that that would be improved, and it merits support.
An amendment in exactly the same form as amendment 144 was defeated at stage 2, so I am surprised that it has been lodged at stage 3.
As Liam Kerr has explained, the amendment seeks to place a new obligation on the Scottish Courts and Tribunals Service to make a summary of evidence provided in a case available to local authorities exercising their social work function. When we discussed the issue previously at committee, John Finnie asked Liam Kerr about the practicalities of that, who would produce the summary and what its status would be. We did not get answers to those questions then, and I am not convinced we have got them from Mr Kerr’s remarks today.
Fulton MacGregor pressed Liam Kerr—quite forensically, I thought—about whether he had had any discussions with Social Work Scotland, social workers or, indeed, the relevant agencies about the amendment. The answer that Liam Kerr gave was a categorical no. I am interested in whether he has now had discussions with Social Work Scotland or, indeed, the relevant agencies. I am happy to give way, if he wants to say that he has.
If we are seeking to improve the process of risk assessment, it is crucial that we are led by the considerations of the Risk Management Authority about what information is most relevant to risk. Accordingly, we need to be cautious as parliamentarians that we do not seek to pre-empt those considerations and predetermine the information that is to be considered as having a bearing on risk.
Amendment 144 would extend across all forms of court-imposed electronic monitoring. A social work report is prepared for the court when considering the imposition of a restriction of liberty order—an RLO—so social work would be aware of the background to the cases anyway. Therefore, there would seem to be limited merit in requiring the court to provide to the local authority information that it is already likely to have or to be aware of. In addition, social work involvement in monitoring an individual serving a community sentence varies depending on the community sentence imposed. For example, there is no requirement for a supervising officer to be appointed by the local authority for an individual sentenced to an RLO. The provision of a summary of the evidence in those circumstances would clearly be a pointless exercise.
In practical terms, I also note that it is not clear how the court would be able to identify which local authority is the relevant authority at the time of sentencing.
I draw Liam Kerr’s attention to amendment 126, in my name, which would create a duty to co-operate between, among others, the Scottish ministers and the Scottish Courts and Tribunals Service. That duty to co-operate would include the sharing of information. That would address Liam Kerr’s concerns about the sharing of information, but would—rightly—retain the flexibility for the Scottish Courts and Tribunals Service to determine what information it can usefully and practically provide.
Amendment 144 presents the same challenges as its predecessor did when it was discussed at stage 2. I ask Liam Kerr not to press amendment 144. If it is pressed, I urge members to reject it.
I thank those members who have spoken, and I am grateful to Daniel Johnson for his support. Is the amendment in the exact form as my amendment at stage 2? Yes, it is, because it was right at stage 2 and it is still right at stage 3.
The cabinet secretary said that he did not get the answers, but I am not the Government. I am not in a position to answer those questions, but I can put forward the principle. The cabinet secretary said that we would discuss the issue before stage 3. That has not happened, so I am not sure how the cabinet secretary could have helped me.
The point about—
I will not, if that is alright with the cabinet secretary—it is not a major point.
I quoted what Social Work Scotland said when this was discussed at stage 2, and that is what the Justice Committee heard. What is sorely lacking are the summaries of evidence that are narrated in court; important information may be missing because of that, particularly in relation to victims.
I also draw the cabinet secretary’s attention to recommendation 182 of the Justice Committee’s stage 1 report, in which the committee called on the Scottish Government to explore with the SCTS how to
“routinely supply criminal justice social workers with summaries of evidence”.
The cabinet secretary says that there is “limited merit” in that, but the Justice Committee was clear on the merit. That is why the Parliament must take this forward.
The cabinet secretary alluded to amendment 126. For the avoidance of doubt, that is a good amendment and we will be voting for it. However, that does not negate why we should vote for amendment 144, which I will press.
The Presiding Officer:
The result of the division is: For 44, Against 69, Abstentions 0.
Amendment 144 disagreed to.
Amendment 15 moved—[Humza Yousaf]—and agreed to.
I ask Liam Kerr to say whether he intends to move amendments 17, 20, 22, 24, 25, 27, 29, 31, 33, 36, 38, 40, 42, 44, 46, 48, 50, 51, 54, 56, 57 and 59?
Section 4—More about the list of disposals:
Amendment 25 not moved.
Amendment 26 moved—[Humza Yousaf]—and agreed to.
Amendment 27 not moved.
Amendment 28 moved—[Humza Yousaf]—and agreed to.
Amendment 29 not moved.
Amendment 30 moved—[Humza Yousaf]—and agreed to.
Amendment 31 not moved.
Amendment 32 moved—[Humza Yousaf]—and agreed to.
Amendment 33 not moved.
Amendment 34 moved—[Humza Yousaf]—and agreed to.
Amendment 145 moved—[Humza Yousaf]—and agreed to.
Although we supported the principle behind the original amendment on information sharing that was lodged by Daniel Johnson at stage 2, we opposed it at stage 2 on the grounds that it was unnecessary and that it created challenges. Nevertheless, the amendment was agreed to and inserted section 7A. The concerns that we raised about the amendment remain valid. Amendment 61 would remove section 7A, and amendment 126 proposes an alternative approach to information sharing.
Section 7A places an obligation on the Scottish ministers to
“request information relevant to the monitoring of that prisoner” from specified bodies—the Scottish Courts and Tribunals Service, Police Scotland and the relevant local authority—and the specified bodies must provide the information that is requested within 28 days of the request. I will set out the practical issues with such an approach.
The duty to request information arises before the prisoner is released on home detention curfew, but the duty has the caveat that it need be complied with only “where reasonably practicable”. The Scottish ministers will therefore be able to release a prisoner on HDC without complying with the duty if they can show that it was not reasonably practicable to do so.
The Scottish ministers will be obliged to request information prior to releasing a prisoner on HDC but will be under no obligation to wait for the information to be provided before they release the prisoner.
There is no description of what
“information relevant to the monitoring” means. The Scottish ministers will therefore have a wide power to request any information that is linked to the monitoring of prisoners on HDC.
Furthermore, there will be no ability on the part of a specified body to refuse a request, in part or in whole, and section 7A provides no definition of “relevant local authority” or any explanation of how the Scottish ministers are to determine which local authority is relevant to the prisoner.
As we noted at stage 2, information is already shared between the Scottish Courts and Tribunals Service, Police Scotland, local authorities and the Scottish Prison Service, and the information is used by the SPS in determining applications for HDC. Therefore, our starting position was that the amendment was unnecessary.
Section 7A might also disrupt the current arrangements. A requirement to request information in every case could place an unnecessary burden on the SPS, which might already have the necessary information or might not require further information. The timing of the request could interrupt the determination of HDC, given that the timeframe that is set out in section 7A allows 28 days for the information to be provided if a request is made. That could slow down the determination and shorten the period that is available for HDC.
However, we are sympathetic to the intention behind section 7A. Amendment 126 will replace section 7A with provisions for a related but alternative approach, which amends section 1 of the Management of Offenders etc (Scotland) Act 2005. That section places a duty on the Scottish ministers and local authorities
“to co-operate with one another in carrying out their respective functions” in relation to two groups of individuals. The first group is people who are supervised by, advised by or guided by a local authority as part of a service that is provided under
“sections 27(1) or (1A) or 27ZA of the Social Work (Scotland) Act 1968.”
That includes people who are released from prison on licence and people who are supervised under a community sentence. The second group is people who are detained in custody.
The duty to co-operate expressly includes the sharing of information. Amendment 126 will retain the intention behind section 7A while avoiding the difficulties with that section, which I have described.
On amendment 2, in the name of Daniel Johnson, access to suitable accommodation is important in supporting individuals who leave prison to reintegrate successfully and, therefore, in reducing the risk of reoffending. However, amendment 2 does not offer a proportionate or effective means of achieving that aim. It risks losing the current flexibility, which allows support to be tailored to the needs of the individual.
The Scottish Government supports a range of interventions that support prison leavers to reintegrate into the community. Those include measures to support prison leavers to access accommodation on liberation, such as the sustainable housing on release for everyone—SHORE—standards, which set out good practice on how the SPS and local government housing authorities can ensure that the housing needs of individuals in prison are met.
It is important to note that local authorities have statutory duties to address the needs of individuals who present as homeless and to provide information, support and services to individuals who are at risk of homelessness. Therefore, I am not persuaded that there is a need to legislate to require the Scottish ministers to take separate action to achieve the same aim. The duplication of existing duties and activities would be inefficient and disruptive, and it would create confusion about the responsibility for housing individuals who leave prison.
Instead, we should focus on making the existing processes as effective as possible. The Scottish Government will look at wider legislation and statutory guidance to ensure that everyone who faces homelessness is able to exercise their right and gain access to appropriate support. That work cannot take place in the context of the justice system alone, and the bill is not the right place to make such substantial changes to housing provision. Therefore, I ask Mr Johnson not to move amendment 2. If he does, I ask the Parliament to reject it.
On amendment 128, I welcome Daniel Johnson’s effort to encourage us to think about how the justice system could operate differently. His amendment seeks to add a new element to HDC by requiring that
“Scottish Ministers take steps to ensure that a person subject to a curfew condition is provided with meaningful activity whilst subject to the curfew condition.”
I am not convinced that legislation is required to support people on home detention curfew, which provides an opportunity to support effective reintegration by enabling part of a prisoner’s sentence to be served in the community, subject to licence conditions and electronic monitoring. That option can currently be provided alongside other services to support individuals who are leaving short-term sentences, including pre-release planning, voluntary social work throughcare, the SPS’s throughcare support service and third sector offender mentoring services.
Although Daniel Johnson’s amendment is well intentioned, I believe that it could create significant restrictions on how the HDC system operates. The definition of “meaningful activity” is to be prescribed by Scottish ministers via subordinate legislation
“but must include ... work or volunteering opportunities”.
However, not every individual on HDC would be able—or, indeed, willing—to engage with those work or volunteering opportunities. It is not clear whether those individuals would be restricted from accessing HDC because no meaningful activity could be provided for them.
Ministers do not control the employment market and could not ensure that work was available for everyone on HDC, so the Scottish ministers could never comply with that duty. In any event, if ministers prescribe work or volunteering opportunities for people, that could cut across other work or family commitments that they may have. Such a system would not provide the flexibility that is needed to take account of the specific circumstances of the individual.
I agree that, ultimately, we can do more to ensure that people who are released from prison are able to connect with public services and are given opportunities. However, I disagree with an approach that seeks to set a broad and mandatory set of activities instead of allowing actions to be determined voluntarily. For those reasons, I propose to resist amendment 128.
I move amendment 61.
I rise to speak to amendments 2 and 128. Before I do that, I will address the cabinet secretary’s comments on amendments 61 and 126.
I saw with some regret that the Government had lodged amendment 61, because I believe that a clear recommendation from Her Majesty’s inspectorate of constabulary in Scotland and Her Majesty’s inspectorate of prisons for Scotland was the need to improve information sharing between agencies. That was found by those bodies to be one of the critical issues around the tragic death of Craig McClelland. I recognise that amendment 126 would insert an alternative, but I do not believe that it would be as robust as a legal requirement to share information. That would be much more robust. However, if amendment 61 is agreed to, members should support amendment 126.
With regard to amendments 2 and 128, the justice system has a duty to protect the public, and it should aim for what I believe is the best way to do that: promoting reform and preventing reoffending. All too often, as the system stands, we simply return people to the circumstances in which they found themselves, which led to their offending in the first place. Amendments 2 and 128 seek to change that, and the amendments that I lodged at stage 2 regarding access to a general practitioner, an address and other measures also sought to rectify that situation.
I understand that it may be difficult and costly, but those things are vital because they are not happening. There may be standards in place, but I do not believe that a legal duty currently exists. The SHORE—sustainable housing on release for everyone—standards do not have a statutory footing. Wales has legislated for such a duty, and I simply ask the question: if it is good enough for Wales, why is it not good enough for Scotland?
As for meaningful activity, I fundamentally believe that the best way to prevent reoffending is by finding people meaningful work. That may be difficult, and I know that the Scottish Government does not control the employment market, but, if people are being released from prison, albeit on HDC, something must surely be found for them to do if we are to ensure that they do not reoffend. For those reasons, I will move amendments 2 and 128.
I speak in my capacity as convener of the Delegated Powers and Law Reform Committee, so I will not make any comment on the policy implications of section 7A or the cabinet secretary’s amendment 61, which seeks to remove it from the bill.
At its meeting this morning, the DPLR Committee scrutinised the recently lodged supplementary delegated powers memorandum. Unfortunately, the lodging of the supplementary DPM breached the timeframe that is required by standing orders, which meant that this morning’s meeting was our only chance to consider it. The committee was disappointed about the lack of time that it had to scrutinise effectively the changes that stem from stage 2, as a result of which we were clearly limited in what we were able to recommend to Parliament. The committee acknowledges that the past few months have been a busy legislative period for all of us, and we appreciate that oversights happen, but that should not have happened.
However, our report has now been published. In it, we make a number of recommendations on the supplementary delegated powers, one of which relates to section 7A. The committee agreed that I should highlight those concerns now, given that members will not have had a chance to read the report.
The committee noted that the delegated power in section 7A
“is particularly wide in its scope” and that, in that respect, it contrasts with powers in other sections of the bill. The committee also observed that the obligation to request information that is relevant to monitoring a prisoner
“is potentially very wide ranging” and that
“There will be data protection implications involved in sharing such information about the prisoner.”
Therefore, the committee considers that affirmative, rather than negative, procedure would have been more appropriate for a power of such a nature. That might, of course, be a moot point if section 7A is removed from the bill.
I commend the DPLR Committee’s report to Parliament.
Sadly, I will not support my colleague Daniel Johnson’s amendment 128, even though it is entirely well meaning. I think that there are a number of challenges connected with it. In any case, the provision of “meaningful activity” should be part of a robust discharge plan, for want of a better term. As the cabinet secretary outlined, there are practical issues around that.
However, we will support Daniel Johnson’s amendment 2. The cabinet secretary talked about statutory duties and good practice—indeed, he promised us wider legislation and statutory guidance—but he will know that everything that we have heard is about the accommodation challenge that people face when they are discharged. That remains an issue, which amendment 2 would go some way towards addressing. It would provide focus; perhaps that is the focus that the cabinet secretary is saying will come with the wider legislation or the statutory guidance that is—if I heard him correctly—intended.
The system is not working, at the moment. We need more robust provision of accommodation. Therefore, we will support Daniel Johnson’s amendment 2.
I wish to speak in support of Daniel Johnson’s amendments 2 and 128. It seems to me that one of the points of the bill is to help with rehabilitation. I listened to Daniel Johnson’s and John Finnie’s comments, and I think that the proposed measures would have merit. Thus, we will support amendments 2 and 128.
I share Daniel Johnson’s curiosity about why the Government is seeking to remove section 7A, not least because—as I recall—its insertion was supported unanimously by the committee at stage 2. I would have thought that, if the Government was so concerned about what the committee unanimously agreed to at stage 2, there would have been some engagement between stage 2 and stage 3.
Like John Finnie, I think that, in relation to amendments 2 and 128, Daniel Johnson made some very valid points about the key role that gainful activity and housing play in the process of rehabilitation and reintegration. The concern that I have—which I had at stage 2—is that the proposal is framed such that the implication is that, where such provision is not in place, the individual will remain in prison, which cannot be in their best interests. Therefore, although we accept the principle that underlies amendments 2 and 128, we will, regretfully, not be able to support them.
I lend my support to the cabinet secretary’s amendments 61 and 126.
However, I will speak briefly against Daniel Johnson’s amendments 2 and 128.
As Liam McArthur does, I think that there are positive intentions behind them, but the bill is the wrong place for them. A lot of work has already been done on the subject, as we heard in evidence to the Justice Committee. There is good work on housing and employment, and as Daniel Johnson discussed at stage 2, around health. Those issues are best left to local service providers that do the job every day, rather than to MSPs and politicians. We need to move away from centralising such matters.
I am grateful to the member for taking an intervention on that point.
If someone comes from location A, was arrested in location B and plans to relocate to location C, who would be their local housing service provider? The statutory obligation rests with the local authority; which local authority would it be?
In that hypothetical situation, my understanding is that the obligation would rest with the local authority that the person came from, unless, while they were in custody, arrangements were made for them to move elsewhere. That makes exactly my point: such arrangements are made every day and services are in place to do that.
As I said earlier, the intentions behind amendments
2 and 128 are positive. I have spoken to Daniel Johnson in committee about them and I know that they are based on a positive intention. However, I do not think that the bill is the right place for them: I do not think that we should be centralising in that fashion. I will not support amendments
2 and 128.
I have heard what committee members have had to say. I, too, say that the bill is the wrong place for amendments
I say to Graham Simpson, who was speaking on behalf of the Delegated Powers and Law Reform Committee, that I am pleased that the committee welcomes the fact that the bill was amended at stage 2 to apply the affirmative procedure to regulations that will be made under section 9(1), in accordance with the committee’s recommendation. I am also pleased to note that the committee reports that it is content with the delegated powers provision, as set out in relation to excluded sentences and approved devices.
Of course, Graham Simpson is right to record the lack of time that the committee had. I apologise to the committee for the inadvertent breach of standing orders and for constraining the time that it had to consider the supplementary delegated powers memorandum. It was delayed as a result of an administrative oversight. I am happy to put on the record my apologies to the committee for that lack of time.
I press amendment 61.
Section 9—Use of devices and information:
Amendment 67 not moved.
Amendment 68 moved—[Humza Yousaf]—and agreed to.
Amendment 69 not moved.
Amendment 70 moved—[Humza Yousaf].
Amendment 70A not moved.
Amendment 70 agreed to.
Amendment 71 not moved.
Amendment 72 moved—[Humza Yousaf].
Amendment 72A not moved.
Amendment 72 agreed to.
Section 11—Designation of person to do monitoring:
Amendment 75 moved—[Humza Yousaf]—and agreed to.
Amendment 77 moved—[Humza Yousaf].
Amendment 77A not moved.
Amendment 77 agreed to.
Amendments 79 and 81 moved—[Humza Yousaf]—and agreed to.
Amendment 83 moved—[Humza Yousaf].
Amendment 83A not moved.
Amendment 83 agreed to.
Amendments 85, 87 and 89 moved—[Humza Yousaf]—and agreed to.
Amendment 91 moved—[Humza Yousaf].
Amendment 91A not moved.
Amendment 91 agreed to.
Amendment 104 will remove the power of arrest in section 12(3A), which was voted on at stage 2. That provision enables a constable to arrest an individual if they have reasonable grounds to suspect that that individual has contravened the requirement to wear and refrain from damaging the electronic tag. The implication is that that arrest may be effected without a warrant.
The police already have powers to arrest an individual who is suspected of having committed an offence, but a breach of the electronic monitoring requirements by an individual who is serving a community sentence or subject to licence conditions is not an offence in itself. The power of arrest would not therefore apply when an individual cut off their tag. The unlawfully at large offence that we created at stage 2 would, of course, enable the police to arrest an individual if they had cut off their tag and failed to return to custody following recall. People who are unlawfully at large can be arrested without a warrant.
It is not clear from the powers of arrest in section 12(3A) what a constable is to do with an individual who is suspected of having breached an electronic monitoring requirement. An individual on licence is liable to be returned to prison only if the licence is revoked. Therefore, a constable who arrests an individual only on suspicion that they may have breached their licence could not return that individual to prison. An individual who is serving a community sentence is liable to be brought before the court only if the breach procedures for that community sentence have been invoked. A constable who arrests an individual only on suspicion that they have breached their community sentence could not return that individual to prison or take them to court. There are existing powers for the police, the Scottish ministers and the courts to deal with an individual if they have breached the terms of the licence or community sentence. People on licence can be recalled to prison and people who are serving a community sentence can be fined or sentenced afresh—even to imprisonment, of course.
A further point to note is that Mr Kerr’s amendment 105 also uses the word “offender”. At stage 2, the Justice Committee took great pains to ensure that that word was omitted from the bill, as we have confirmed in relation to previous amendments this afternoon.
It is clear that the power of arrest in section 12(3A) is unnecessary and that the creation of a specific statutory power of arrest is a departure from the use of a general power of arrest if an offence has been committed, as agreed by the Parliament in 2016. Police Scotland has also expressed its concerns to us about the limitations on how that power could be used. The creation of a power to arrest an individual without a warrant in the absence of a criminal offence being suspected or committed and without a duty on the individual to return to prison would be confusing and could even potentially represent a breach of article 5 of the European convention on human rights.
Amendments 105 and 130 would create the offence of cutting off a tag. My first reason for urging members to reject amendment 105 is because a near-identical form of the amendment was rejected at stage 2, and my arguments against that amendment continue to apply. Indeed, the only change to the earlier amendment is the provision of a limited form of statutory defence.
Secondly, the new unlawfully at large offence ensures that those who cut off their tag and abscond will be committing an offence. Making one specific part of the same course of behaviour a further offence is therefore not necessary.
Thirdly, the proposed offence of cutting off a tag carries a maximum sentence of 12 months’ imprisonment. There would be a presumption against imprisonment for the new offence. Under the proposal, the individual may therefore be more likely to receive a fine.
Fourthly, there are already sanctions for those who cut off an electronic tag or otherwise breach the conditions of a licence or community sentence. The individual can be recalled to prison or, indeed, returned to court, to face further punishment for the breach.
Fifthly, the creation of an offence of cutting off a tag could result in an individual who is serving a community sentence being fined for breaching the community sentence and for cutting off their tag. That would mean two separate financial punishments being imposed on an individual for the same course of conduct. In contrast, the unlawfully at large offence would not apply to community sentences, thereby avoiding the risk of double punishment.
The defence that amendment 105 provides would not protect an individual whose tag is damaged accidentally or removed forcefully by a third party. A defence of reasonable excuse would be required to ensure that an individual was not convicted of an offence for conduct over which they had no control. The proposed offence would elevate the electronic monitoring requirement above all other conditions in the licence or community sentence, even if those other conditions were more important in protecting the public. For example, an individual who stayed in the house and cut off the tag would be committing an offence, whereas an individual who breached a condition not to go near a primary school would not.
Amendment 130, in the name of Daniel Johnson, is similar in nature to amendment 105, so the same arguments apply. Although the defence that is proposed in amendment 130 is framed differently, it attracts the same criticism as the defence for which amendment 105 provides. An individual who accidentally damaged their tag, or whose tag was forcefully removed against their will, would not be afforded a defence under that amendment.
An additional difficulty with amendment 130 is that there is no specific punishment for the offence. While amendment 105 specifies the maximum punishment on summary conviction for the cutting off of a tag, there is no punishment specified at all in amendment 130. It is not clear whether the offence that would be created by amendment 105 could be tried only summarily or in solemn proceedings as well. I urge members to vote to reject those two amendments.
Margaret Mitchell’s amendment 146 is broadly similar to the amendment that she lodged at stage 2, which was rejected. The reasons for rejecting the amendment remain the same. The only change to the wording is the addition of qualifying language that states that, when there is a suspected breach, the designated person
“must notify such bodies mentioned in subsection (3) as they consider appropriate.”
The amendment would place an obligation on the designated person—currently, G4S—to report every suspected breach of a community sentence or licence condition to the police, as there are currently no other bodies specified in subsection (3).
The breach would also require to be reported whether or not the designated person considered that it should be addressed by the police. The duty to report a suspected breach would apply irrespective of whether the individual required to be recalled to prison under the terms of their licence or whether any enforcement action was to be taken. For example, an individual who is five minutes late for their home detention curfew would require to be reported to the police, even though the police would not act on that information unless the individual had been recalled, which in most instances one would suspect would not be the case.
The drafting of amendment 146 means that the provision would apply where the individual was suspected of having breached a section 3 disposal or a section 7 licence condition. There is no reference to an electronic monitoring requirement, so it would capture any breach of a disposal or licence listed in sections 3 or 7, even where no electronic monitoring requirement was imposed.
Finally, the obligation to inform is also confusing, as it specifies two different timescales for compliance. The first is “Immediately” after the suspicion arises and the second is
“or as soon as is reasonably practicable”.
For all those reasons, I ask members to reject amendment 146.
I move amendment 104.
Parliament will be well sighted on amendment 105 and the reasons for it, and it is imperative, in my view, that Parliament has its say. Members will be aware that, under the bill as amended at stage 2, offenders who were out on a tag could cut off their tag and would not be considered to have committed a criminal offence. I find that extraordinary. There should be an immediate power of arrest, and amendment 105 would provide that.
The reality of the increase in the use of tagging means that someone would be in prison but for the tag that they are wearing. We must surely, therefore, treat the removal of a tag as seriously as if the person had breached the prison wall.
Parliament will be reassured to note that Scottish Women’s Aid made clear to the committee in its stage 1 evidence that a criminal offence in such circumstances is needed if there is to be a credible deterrent. Victim Support Scotland, Community Justice Scotland and Positive Prisons? Positive Futures called for robust responses to breaches of monitoring conditions.
Again, the committee rightly raised objections at stage 2 and, no doubt, Parliament would wish to hear them answered. Fulton MacGregor was uncomfortable that such an offence seemed to be punitive. I can only respond that of course it is punitive, because the offender has done something that is akin to breaching the prison wall.
The cabinet secretary was concerned that someone might need to remove a tag for medical reasons and would then be further criminalised as a result. I was not convinced that that would happen, and I remain unconvinced. I do not foresee some sort of strict liability around the provision, but I see the need for reassurance, which is why I have added the defence of removing the tag for medical reasons.
If the legislation is going to increase the number of offenders on tags, the appropriate protections must be in place. That means making it a criminal offence to tamper with or damage a tag, and I seek Parliament’s support for amendment 105.
For similar reasons, we will support Daniel Johnson’s amendment 130 if he chooses to move it, and we will oppose amendment 104, which seeks to remove what was a sensible amendment at stage 2 that aimed to ensure that the police have powers of arrest when an offender has cut off their tag. The stage 2 amendment was lodged in response to evidence that the committee heard from the police that there are legal grey areas around their powers to apprehend, and the provision is now in black and white in the bill.
Police officers do not monitor or control the conditions that are attached to electronic monitoring. When a breach of those conditions occurs, such as when the offender enters an excluded area or tampers with or removes their tag, the police officers’ response is reactive.
That has raised concerns at Scottish Women’s Aid, Victim Support Scotland and Community Justice Scotland that the response time to react to a breach is too long.
Amendment 146 therefore seeks to ensure that, when there is a suspected breach of a disposal or conditions, the relevant bodies are contacted immediately, or as soon as possible. The relevant bodies are listed as:
“(a) the Police Service of Scotland” and
“(b) such other body as the Scottish Ministers may by regulations specify.”
As the cabinet secretary said, amendment 146 is similar to one that I lodged at stage 2, but it has been revised to take account of the concerns that the cabinet secretary raised at stage 2 about minor breaches being escalated to the police. The amendment now provides for discretion and a proportionate response to any breach by stipulating:
“Immediately or as soon as is reasonably practicable after a suspected breach mentioned in subsection (1) has occurred, a person designated under section 11(1) must notify such bodies mentioned in subsection (3) as they consider appropriate.”
In other words, the amendment allows the designated person to use their judgment about whether they consider that the breach is one that must be responded to immediately by, for example, Police Scotland. As domestic abuse would possibly be covered by conditions, a breach could result in a victim being put in immediate danger, so I hope that the cabinet secretary will support amendment 146. Crucially, it removes the potential for minor breaches—as a result of a technical error, for example—to be escalated to the police, but it provides added protection for victims of domestic abuse.
Amendment 146 also gives clarity to the procedure to be followed, which is why the Law Society of Scotland supports it.
I believe that it is important that we make cutting off a tag an offence for the following reasons. First, when we look at the circumstances of Craig McClelland’s death, it is clear that a significant number of people were unlawfully at large who had realised that they could cut off their tags and that that, in and of itself, did not constitute an offence and that they had a good chance of escaping detection. That needs to be corrected.
More important, if we decide that someone has committed an offence that requires us to deprive them of their liberty, and they tamper with the means by which we are restricting or removing their liberty, that is extremely serious, so I believe that doing so should be an offence. If we cannot monitor their whereabouts or whether they are abiding by the restriction of liberty, that must be considered an offence and should be treated as such.
It is not about elevating the electronic monitoring requirement above other conditions; it is about recognising that the tag is the primary measure that we will be using to deprive people of their liberty in such circumstances.
On the tragic case that Daniel Johnson mentioned, I know that the thoughts of everybody in the chamber will be with the McClelland family. Does Daniel Johnson recognise that we are introducing an offence of being “unlawfully at large”, which, in that case, would have meant that James Wright would have been arrested? Therefore, I am not sure that the case is a justification for making cutting off a tag an offence.
The cabinet secretary is right; I welcome the new offence. It is an important step forward and it would correct many of the issues. However, as Liam Kerr put it, when someone goes over the prison wall, we do not wait for them to rob a bank before we arrest them. We arrest them once they have gone over the wall. If someone cuts off their tag, we should not wait—their doing so should, in itself, be a ground for arresting that person.
I want to speak briefly, because Liam Kerr mentioned me in his remarks. For the record, I did not say that the offence would be regarded as punitive; I said that it could be regarded as overly punitive, because the individual circumstances would not be taken into account. There was a wee bit of a play on words there, which I think the
Official Report will show.
Of course the breach of an electronic monitor needs to be taken seriously and dealt with robustly—nobody in the chamber would disagree. However, we need to get the balance and the measure right—that is why the provisions of the bill are the right way to deal with the issue, and we should not play simple politics with it.
The Presiding Officer:
Thank you. I invite the cabinet secretary to move amendments 111, 113, 115, 117 and 119.
Amendment 111 moved—[Humza Yousaf].
Amendment 111A not moved.
Amendment 111 agreed to.
Amendment 113 moved—[Humza Yousaf].
Amendment 113A not moved.
Amendment 113 agreed to.
Amendment 115 moved—[Humza Yousaf].
Amendment 115A not moved.
Amendment 115 agreed to.
The purpose of my amendment is to address an anomaly in the law that was first raised with me by my constituent Michelle Gavin almost three years ago.
An intruder broke Michelle Gavin’s fence while trying to avoid a police officer. Rather than take him to court, the procurator fiscal offered the intruder a fiscal fine—a compensation order requiring him to pay the householder £400 to fix her fence.
When I raised that case during stage 2 consideration in April, the money paid to my constituent amounted to £7.50. Thanks to the spotlight of parliamentary scrutiny, that has now risen to £15. That means that £385 remains outstanding three years after the damage took place. By any standard, the law has failed that victim, just as it has many thousands of others. That is why change is required.
Michelle Gavin has received only a fraction of the compensation owed to her, in part because the perpetrator is under no legal obligation to provide information on his income, savings or benefits, or any other relevant information that would help to ensure that he paid the fiscal fine. It is far harder for the courts to enforce such an order. That is why my amendment proposes to make completing a declaration of income form, which is relevant in this case, mandatory.
When I moved a similar amendment at stage 2, members suggested that it should make provision for reasonable excuse and specify a time limit for completing the form. I have addressed those points in the revised amendment.
Perhaps more importantly, the cabinet secretary said at stage 2 that he would rather not rely on declaration of income forms since the necessary information could be obtained direct from United Kingdom Government departments. I am very open to that approach. The Digital Economy Act 2017 contains provisions to allow the courts to obtain information about benefits and earnings directly from Department for Work and Pensions and HM Revenue and Customs databases, but that requires the Scottish ministers to introduce the necessary regulations to allow the Scottish Courts and Tribunals Service to put the appropriate arrangements in place.
I return to the issue in order to discover from the cabinet secretary whether such regulations have been drafted and, if so, when he expects them to be laid. I also ask whether those regulations will ensure that data sharing will apply to fines that have not yet been paid, as well as to new cases decided after the regulations are passed.
Michelle Gavin has already waited far too long. My purpose is to ensure that her case can be revisited by the Scottish Courts and Tribunals Service, using new powers to obtain information so that she can get the money to which she is entitled, whether those powers come from this amendment or from Government regulations on sharing data. I look forward to the cabinet secretary’s contribution.
I move amendment 121.
As at stage 2, when an almost identical amendment was voted down, I welcome Lewis Macdonald’s interest in improving fines enforcement. The commitment of all parties to that important work is welcome, and I appreciate the fact that he is acting on behalf of a constituent in his region.
Fines collection rates in Scotland are high, and I welcome the continuing efforts that the
Scottish Courts and Tribunals Service puts into enforcement. Recent statistics show that 90 per cent of the value of sheriff court and justice of the peace court fines imposed during the three-year period between 2015-16 and 2017-18 had either been paid or was on track to be paid. I accept that the remainder is a hard nut to crack, and I appreciate that that is exactly what amendment 121 is aimed at addressing. However, amendment 121 is not the best way of going about that. Despite some changes that Mr Macdonald has made to the amendment since stage 2, it remains somewhat flawed. Among other issues, failure to obey a court order is a contempt of court, and the penalties for contempt of court are set out in the Contempt of Court Act 1981. It depends on the court, but in all cases the penalties exceed the £1,000 set by amendment 121 and include the possibility of imprisonment. The offence that Mr Macdonald seeks to create does not even match the existing deterrent. There is no justification for creating a new criminal offence for conduct that can be already be dealt with by a court.
There are other technicalities that I can go into if necessary. More fundamentally, though, from a policy point of view, I am concerned, as I mentioned at stage 2, about the circularity of creating a new offence attaching a penalty of a fine in precisely those cases where the individuals concerned had already demonstrated their failure to engage with fine enforcement officers. I note that the offence appears to be little used in England and Wales, which suggests that there is little point in creating one up here.
There is a better way of dealing with this. Lewis Macdonald asked for an update from the Government about regulations. He is right—we want the Scottish Courts and Tribunals Service to obtain relevant information about a person’s income directly from the Department for Work and Pensions and HM Revenue and Customs. I can confirm to Lewis Macdonald that before the end of the year we will put draft regulations before the Parliament to enable that to happen. What that means is that instead of asking the defaulting individual for information about income and benefits, the fine enforcement officers would be able to obtain that information directly from the DWP and HMRC. That would be a far more effective way of dealing with people who have already proved themselves reluctant to engage with the court service. It does not create a circular offence.
In summary, despite some of the changes to amendment 121 since stage 2—
I do not know whether we have the ability to be retrospective. If the member will forgive me, I cannot say that until we draft the regulations and have come to a determination following our own legal advice and after speaking to the DWP and HMRC.
I recognise that it is an important matter, particularly because Mr Macdonald’s constituent has been waiting for three years for the fine to be paid. When we return from recess and when we are drafting those regulations, perhaps I can meet Mr Macdonald to assure him that we will do everything possible to help people such as his constituent and many others who may well be in that situation to have those fines paid. I will endeavour to involve him in some of the conversations around the drafting of the regulations.
For all the reasons that I have outlined, I hope that Mr Macdonald will not press amendment 121 but, if he does so, I ask members to reject it.
I welcome the commitment that the cabinet secretary has made in relation to timing and his offer of a meeting to ensure that the changes that go through Parliament will assist in the case of Michelle Gavin and the many other cases that are no doubt outstanding.
I look forward to that discussion with him soon after the summer recess. On that basis, I seek to withdraw amendment 121.
Amendment 121, by agreement, withdrawn.
The amendments in this group are all minor or technical amendments to tidy up the bill. I do not think that there is anything controversial among them, so I will not keep members back by saying too much about them.
Amendments 122, 123, 133 and 136 ensure that the Prisoners and Criminal Proceedings (Scotland) Act 1993 is referred to consistently throughout the bill with the label “the 1993 Act”. Amendments 131 and 132 adjust some language in section 43C that was added at stage 2 so that it is consistent with the language that is normally used in provisions of this type. Amendment 143 corrects a typo where the word “Act” appears once too often.
The other amendments in the group move sections around to improve the accessibility of the legislation. Everything that is about the Parole Board for Scotland as an institution will sit in part 3 and all the substantive provisions about prisoners will sit in a new part after part 3.
I move amendment 122.
Amendment 122 agreed to.
I am mindful of two key points. The first is the correspondence that I have had from the cabinet secretary, for which I thank him. The second is my understanding that the Government intends to introduce legislation on the Parole Board. I will bear that in mind in what I say. I do not intend to speak for long.
The Parole Board does particularly important work in determining whether individuals continue to pose risk to public safety and whether they should be released from prison. It is therefore critical that the board’s work is carried out independently. That work is not always easy and it requires fine and balanced judgments, and therefore its independence is important. The independence of the judiciary, which is set out in statute and which we all have a duty to uphold, should be mirrored for the Parole Board. However, I recognise that there may well be technical issues with the amendment, and I will listen to what the cabinet secretary has to say on it.
I move amendment 1.
I thank Daniel Johnson for his amendment and for the constructive conversation that we have had at the various stages of the bill. As Daniel Johnson rightly did, I put on record the fact that the Parole Board’s members do an incredibly difficult job, and they do it very well. It is a remarkably difficult job and one that has to be—and rightly is—free from political interference and indeed governmental interference. We should all unite in defending the independence of the Parole Board, and I am sure that we all do.
I sympathise with the purpose of amendment 1, but I consider that section 44 goes far enough in reinstating the independence of the Parole Board. As briefly as possible, I will touch on my concerns about amendment 1. The area that causes me the most concern relates to the Scottish ministers’ power to recall a person to custody for breach of their licence conditions. My view is that any such action to revoke a licence by the Scottish ministers would run contrary to the proposed amendment. It effectively involves the Scottish ministers revoking the person’s licence, as set by the Parole Board, and could be seen by some as interfering with the board’s independence.
I am sure that members will agree, where protection of the public demands it, it is appropriate that the Scottish Ministers can make a decision to revoke a licence without having to wait until the next time that the Parole Board will convene to consider the case. I am happy to expand on that or my other concerns. The reason why I am highlighting them is that I believe that the amendment may have unintended and potentially damaging consequences to the overall parole system.
I consider section 44 to be sufficient to restate the independence of the Parole Board. I therefore ask Daniel Johnson not to press amendment 1, and if he is otherwise minded, I urge other members to reject it.
I heard what the cabinet secretary has to say and understand his reservations. If the Government brings forward legislation in the coming months and years, we need to consider the role of the Parole Board very carefully, in terms of its independence and the fact that, while in many respects it is a tribunal like other courts, it is not identical. Its important role needs careful consideration.
However, with the comments that the cabinet secretary has just made in mind, I will not press the amendment.
Amendment 1, by agreement, withdrawn.
Amendment 124 seeks to make a change to section 3AA of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in order to provide greater flexibility in the structure of HDC and to clarify its impact on the Parole Board’s assessment for parole.
The direct impact of the change will be minimal in terms of eligibility for HDC. However, in the context of a historically high prison population, the change is required so that ministers will have sufficient powers to configure HDC differently in the future, should they ever need to do so. I believe that it is a prudent step to take now, when there is an available legislative vehicle.
The amendment proposes a change in how the minimum length of time that is to be spent in custody before a person becomes eligible for HDC will be framed in legislation. Currently a prisoner can be eligible only after serving one quarter of their sentence or four weeks—whichever is greater. Subsection (2) will change that so that a prisoner will have to serve only one quarter of their sentence to be eligible for HDC. The Scottish ministers currently have the power, via subordinate legislation, to modify the requirement that a prisoner must serve a minimum of four weeks but not the requirement that a prisoner must serve an absolute minimum of one quarter of their sentence. Subsection (3) will enable the Scottish ministers to modify, via subordinate legislation, the minimum amount of time that must be served for HDC eligibility, should they ever need to do so.
If it were ever necessary to change the requirement that a minimum of 25 per cent of a sentence must be served before someone becomes eligible for HDC, any such proposal would come back to the Parliament for approval under subordinate legislation—which, importantly, would be subject to the affirmative procedure—instead of requiring future primary legislation. That pragmatic change will ensure consistency with the already broad range of powers that ministers have to modify the HDC regime via subordinate legislation.
The Scottish ministers have the power to modify the following aspects of the HDC regime via subordinate legislation: the minimum sentence that a short-term prisoner must be serving to be eligible for HDC, which is currently three months; the number of weeks that must be served before a short-term prisoner can be eligible for HDC; the number of days leading up to the halfway stage of a prisoner’s sentence during which HDC can be granted; and the statutory exclusions from HDC.
However, although the Scottish ministers have a power to modify the minimum number of weeks that must be served before a prisoner is eligible, which is currently four weeks, there is no power to modify the requirement that one quarter of the sentence must be served. The requirement that a prisoner must have served a requisite amount of a sentence before being eligible for HDC remains a barrier to flexibility in how the system can be configured.
Under the powers that are proposed, the Scottish ministers will be able to change the minimum time that must be served before a prisoner can be eligible for HDC, either by reference to a specific period of a prisoner’s sentence or by a specified period of time. The two-pronged approach of requiring either four weeks or a quarter of the sentence to be served will be replaced with the simple requirement that one quarter of a sentence be served. Ministers will retain the power to modify that requirement. I stress that we are not proposing to change the requirement that a prisoner must serve 25 per cent of their sentence. However, amendment 124 provides the flexibility for ministers—present or future—to work with the Parliament to act quickly if that is required.
I would have preferred to have had the opportunity to debate the change at committee stage—or, indeed, to have taken forward the approach through new legislation—but the prison population has continued to change over recent weeks, with numbers creeping steadily upwards. I must therefore act now and ask the Parliament to consider this option as a pragmatic future proofing of the available policy responses. We are, of course, exploring other measures in relation to operational capacity in the existing prison estate, and we are looking across the operation of the entire justice system in seeking to address the rising prison population. The change to HDC is relatively minor in nature, but the fact that it needs to be considered should give us all pause to reflect that we have the highest prison population per capita in western Europe—which is not a statistic to be proud of.
There has been positive collaboration on many parts of the bill to date, including through the support for electronic monitoring as an alternative to prison. I hope that the collaboration across parties will extend into future parliamentary sessions, because it is important that we continue to seek alternatives to incarceration across all our legislative and policy choices.
The final change that amendment 124 will make is to clarify that the legislation that underpins HDC does not require the Parole Board for Scotland to make a decision on parole by a specific date to enable a long-term prisoner to access HDC. Long-term prisoners are eligible for HDC only if they have been pre-approved for parole by the board at the halfway stage of their sentence. Amendment 124 clarifies that the window during which a long-term prisoner can be granted HDC is restricted by the timing of the board’s decision to recommend release on parole: the decision on parole will take precedence and will not be expedited to enable a long-term prisoner to spend a longer period on HDC.
Amendment 127 was lodged in response to an amendment that Margaret Mitchell lodged at stage 2, which proposed that statutory HDC guidance should be produced and laid before the Parliament. As I said at stage 2, I am sympathetic to the intent behind that amendment, and I am grateful to the convener, Daniel Johnson and Liam Kerr for working with us on an approach that I hope satisfies them and provides what they were looking for.
Amendment 127 sidesteps two areas of concern with the amendment that was considered at stage 2. It avoids including material that duplicates other provisions in the bill and it does not create a circular obligation on the Scottish ministers to have regard to their own guidance. We propose that ministers should be obliged to publish a statutory HDC operating protocol, which will include the following heads of information:
“(a) the process of risk assessment that is carried out before a prisoner is released on licence under section 3AA”— of the Prisoners and Criminal Proceedings (Scotland) Act 1993—
“(b) the factors taken into account in carrying out such risk assessments,
(c) the procedures for monitoring a prisoner while released on licence under section 3AA,
(d) the process for investigating a suspected failure to comply with a condition included in a licence under section 3AA,” and
“(e) the process by which a licence under section 3AA is revoked and a prisoner recalled to prison as a result”.
We included in amendment 127 a requirement for the police, the SCTS, local authorities, the Parole Board and the Risk Management Authority to be consulted in the preparation of the protocol. In addition, the protocol will require to be laid in the Parliament within six months of royal assent and will thereafter be kept under review.
The inclusion in the bill of the heads of information on risk assessment and factors to be taken into account in carrying out a risk assessment will, we hope, satisfy members and provide what they were looking for in relation to risk.
The heads of information that are set out in amendment 127 will ensure the publication of information about the entire HDC process, including the risk assessment prior to the granting of HDC, the monitoring of risk in the community and the revocation of HDC.
The requirement to lay the protocol before the Parliament will give the Parliament an opportunity to scrutinise the risk assessment procedures that are used for the purposes of HDC.
I urge members to support amendments 124 and 127, and I move amendment 124.
I am grateful to the cabinet secretary for meeting me to discuss the need for stronger risk assessment before electronic monitoring is considered. As he says, at stage 2, I tried to push for robust risk assessment procedures and for details of the risk assessment tool to be shared with the Parliament before the bill was passed. I am pleased that our discussions have at least led the cabinet secretary to lodge a stage 3 amendment that will ensure that the details of how risk will be assessed will be consulted on and that a report will be produced for the Parliament within six months of royal assent if the bill is passed today. On that basis, I am happy to support amendment 127.
I express my support for amendment 127. It is a positive step forward. My only regret about it is that it does not contain a legal obligation for the guidance to be followed, which would make a substantive difference. I will cover that when we come to risk assessment, later in the debate.
I will express the three reasons for my concern about amendment 124. The first is the rationale. Although I completely agree with the cabinet secretary that we must make a concerted effort to reduce our prison population and that we must seek alternatives to incarceration, I worry that the proposed measure, in making that intention explicit and in having solely that aim, potentially risks the very intent that the cabinet secretary sets out. We will reduce the prison population by reducing offending, not simply by re-categorising people.
Secondly, I worry about the power that the cabinet secretary is giving to ministers in allowing them to alter the minimum threshold for HDC. I worry about whether that is appropriate, because I believe that we should be avoiding short prison sentences. On removing the threshold of four weeks, I wonder what the point of sending someone to prison for less than four weeks is. That is counterintuitive.
Fundamentally—and finally—Parliament has not been able to scrutinise the proposals, which is a matter of huge regret.
For those reasons, I do not believe that amendment 124 can be supported. It perhaps could have been supported if its provisions had been introduced earlier, but I do not believe that they can be supported when the amendment has been lodged at this late stage.
The Scottish Greens will support both of the amendments in the group. They are a useful contribution to what has been a very detailed debate on the whole issue, particularly around the question of risk assessment. I wonder whether the cabinet secretary, in his summing up, can comment on the likely impact on the numbers. It was depressing to see the most recent figures for people being granted home detention, which showed a significant drop in their number—due, no doubt, to the risk aversion that was built into the system. I ask the cabinet secretary to comment on that. Nevertheless, he has our support for both of the amendments in the group.
I thank members for their contributions. I will focus on some of the questions that have been asked of me in relation to amendment 124. I reassure Daniel Johnson that the measures will be subject to the affirmative procedure. Therefore, Parliament will be able to scrutinise and debate any changes.
Let me put on record again—as I did in my opening remarks—that we are not proposing any change to the minimum time period; the aim is simply to allow ministers more flexibility.
On HDC, my belief is that, as John Finnie said, the pendulum has perhaps swung too far in the other direction in that the number of people who are coming out of prison on HDC is very low. A number of members have written to me, expressing their concerns on that very point. As John Finnie suggested, it is not a question of re-categorising people; it is about examining the HDC regime as a whole and seeing where sensible changes can be made, always with the protection of the public foremost in our minds.
On the question of scrutiny, our amendments were lodged by the deadline, as they were meant to be, and this is a good point at which to scrutinise them. Of course, if they could have been introduced earlier, I would have preferred that—members will forgive me for the fact that they were not.
To address John Finnie’s point, we are not proposing any changes to the eligibility criteria, so there will not be a change in the numbers. However, as he is aware, the two inspectorates—HMICS and HMIPS—conducted a follow-up inspection of the review of HDC, and there is a lot in that review that would help to negate and mitigate some of the risk aversion that he, rightly, talks about.
Therefore, with the protection of the public foremost in mind, it is possible to look at the HDC regime and ensure that it is being used in a proportionate and balanced manner to give people the opportunity to reintegrate into their communities and, we hope, to reduce reoffending. I thank Margaret Mitchell for her helpful comments throughout the debate, including the comments on my previous amendment that she made a moment ago.
Briefly, the purpose of amendment 3 is set out within the amendment. It is to do with Parole Board hearings and it seeks
“to ensure that a prisoner whose case the Board is considering” is able to understand
“the ... matters being discussed at the hearing”.
In technical terms, the amendment would simply bring the provisions for people who appear in front of the Parole Board into line with the provisions for people who are detained under the Mental Health (Care and Treatment) (Scotland) Act 2003, by having the provisions of that act made available to them. The point is to provide appropriate support for vulnerable prisoners at Parole Board hearings.
I will conclude with the words of the cabinet secretary in his letter to me of 10 June. He said:
“It is clear that your suggestion has merit”.
My delight at those words is equalled only by my disappointment that it is his intention, I understand, not to support my amendment 3. However, I intend to move and press it.
I move amendment 3
I never aim to disappoint, but in this case I probably will. If it were agreed to, amendment 3 would result in a small part of the Parole Board procedure being provided for in primary legislation, while the remainder would be provided for in secondary legislation in the Parole Board (Scotland) Rules 2001.
Gordon Lindhurst has made a strong argument for the principle of what he is suggesting: I think that we would all unite around the principle of vulnerable prisoners being given support such as he suggests. However, my issue is largely with where that support would lie in legislation and the unintended consequences and problems that that might incur. Although we disagree about amendment 3, I thank Gordon Lindhurst, who has been very constructive in his approach. We have tried as best we can to reassure each other mutually. I know that he comes at the issue on the basis of the experience gained from his professional background.
Rather than being able to be made through secondary legislation, any further changes to the provisions that are set out in amendment 3 would require an act of the Scottish Parliament. In this instance, I remain of the view that it is entirely appropriate that matters of procedure for the Parole Board be provided for in secondary legislation. That gives us the flexibility to change aspects of Parole Board procedure more quickly, should the need to do so be identified. For that reason, I consider that matters relating to procedure are for the Parole Board rules, rather than the bill.
In addition—I know that Gordon Lindhurst and other members will be aware of this—the consultation on transforming parole in Scotland, which closed on 27 March, included proposals to provide additional support to prisoners who are in the parole process. We are currently considering the responses to the consultation.
As I stated in my letter to Gordon Lindhurst when he lodged a similar amendment at stage 2, I consider that his proposals should be progressed as part of the response to that consultation. I have already given him an assurance that that will happen, but I put it on record again. We are planning a revision of the Parole Board rules at a later stage, once all potential changes to the rules have been identified. If Gordon Lindhurst’s amendment 3 is not agreed to, and he wants to discuss the proposal with me in advance of that process, I would be more than happy to have such a discussion.
Notwithstanding my views on the appropriateness of such matters being dealt with in primary legislation, I have considerable concerns about aspects of amendment 3 relating to the clarity of some of the terms that are used and the scope of the provision. I can expand on those matters if members would like me to do so. For those reasons, I urge Gordon Lindhurst not to press amendment 3 and I ask members to reject it, if he does.
My amendment 125 seeks to amend section 40A of the bill, which was inserted at stage 2 by an amendment in the name of Mary Fee. Section 40A would make it mandatory that, before making a recommendation to release a prisoner under section 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, the Parole Board take into account the impact of its decision on the prisoner’s family and the ability of the prisoner to reintegrate with their family. I say at the outset that I am sympathetic to the intention of that provision. It is only fair to put on record the tremendous amount of work that Mary Fee has done in relation to the families of people who are in prison. It is also worth putting on record the great work that is done in that context by organisations including Families Outside, which has informed many parliamentarians about the impact of imprisonment on family members.
However, I have various issues with the provisions of section 40A. There is a lack of qualification and specification in respect of who would be considered to be a “family member”. In addition, the requirement that it provides for would be mandatory, regardless of its relevance in individual cases. For example, when the prisoner has no intention of contacting the family, the requirement would not be appropriate. I also believe that it could be difficult for the Parole Board to satisfy the requirement in all cases—I am thinking of the need to obtain the views of the family to enable them to consider the impact that the prisoner’s release might have on them.
I have lodged amendment 125 to adjust the powers to make the Parole Board rules of procedure include specific reference to consideration of the “likely impact” of any recommendations of the Parole Board on prisoners’ families. I believe that that is a more flexible approach that will include in the 1993 act reference to the impact on a prisoner’s family of a recommendation to release, but will allow for detailed provision to be made in the Parole Board rules, where I consider such provision would be better placed, as I said of Gordon Lindhurst’s amendment 3.
Therefore, I urge members to support amendment 125.
I advise the cabinet secretary that he might come to regret the claim that he never aims to disappoint, but I assure him that we will support amendment 125. We recognise that this is an area in which Mary Fee has done a huge amount of work and made great strides, not just when she was a member of the Justice Committee but during her time in Parliament.
I thank Gordon Lindhurst for bringing amendment 3 back at stage 3. He set out the case well to the committee at stage 2. I am grateful to him for sharing the correspondence that he and the cabinet secretary have had in the interim.
Although I accept the cabinet secretary’s point about not wanting to build in too much rigidity to the work of the Parole Board for Scotland, it is difficult to see the general principles that are set out in amendment 3 altering over time. The point was well made that the wording reflects what is already in the Mental Health (Care and Treatment) (Scotland) Act 2003. For that reason, we will support amendment 3.
As we have already heard this afternoon, the Parole Board plays an important role in our justice system, but it can be finely balanced, and the Parole Board’s processes are not always obvious to those outside the criminal justice system. I believe that one of the most important things that we must pursue in the justice system is transparency, which is what amendment 129 seeks to do by setting out a statutory requirement for the Parole Board to specify the test or tests that it will apply when making its decisions.
The current position is that some tests are specified, but they vary and the legislation is silent in other areas. That leads to an inconsistent and confusing situation for all who are involved. The Parole Board raised the issue in its written evidence to the committee and I believe that the adoption of a test will enhance transparency in the justice system. I thank the cabinet secretary for the dialogue that we have had in this regard—it has been incredibly useful.
I point out to members that, although the amendment sets out the requirement for a test, it leaves it to the Parole Board to devise and publish the test. I believe that that approach provides for the flexibility that will be required in order to take the provisions forward.
I move amendment 129.
I understand the intent behind Daniel Johnson’s amendment, but I cannot help but observe that, in the space of two groupings of amendments, he has gone from standing up for the independence of the Parole Board to moving an amendment that cuts across some of that independence. Therefore, we will not be supporting amendment 129.
I simply say that I welcome amendment 129. At stage 2, Daniel Johnson lodged a similar amendment and I indicated support of it in principle, subject to the removal of provisions that related to the publication of a summary of Parole Board recommendations, which I believed would be better suited to the Parole Board rules. I am therefore pleased that Daniel Johnson has agreed to remove the requirement to publish a summary of recommendations and I am happy to support his amendment.
“Robust risk assessment procedures are critical to the effective use of HDCs and other forms of electronic monitoring. The Committee agrees ... that decisions on electronic monitoring are informed by proper and appropriate assessments.”
I have listened throughout to the representations on the issue, and I acknowledge the cabinet secretary’s willingness to discuss it. However, I still come back to the same principle: surely, before we do anything to increase the number of people who are on electronic monitoring, we must have a robust and trusted assessment tool.
Amendment 138 simply requires the Scottish Government to develop that tool. It also requires the courts to have regard to the tool when disposing of cases, and requires ministers to publish a report on the operation of the risk assessment tool.
At stage 2, it was said that there have been some improvements to HDC assessments, but I come back to the point that we cannot be too restricted in our focus on home detention curfew. We must apply rigorous risk assessment across all early releases from prison. Furthermore, the cabinet secretary said that it was not clear what the tool would look like, but that is for the Scottish Government to determine, as amendment 138 clearly sets out. Flexibility for different forms of release on licence is not precluded.
For those reasons, the bill requires the safety and reassurance that would be provided by a risk assessment tool, and I commend the amendment to members. For similar reasons, and for the avoidance of doubt, we will vote for amendment 139, in the name of Daniel Johnson.
I move amendment 138.
As Liam Kerr has pointed out, the assessment of risk is absolutely critical to the bill, following the events that have informed its passage. I will quote, not for the first time, from the HM inspectorate of prisons for Scotland report:
“Whilst an assessment process clearly existed, it may not be regarded by some to meet the definition of ‘robust’.”
That is a clear call for a robust system of risk assessment to be put in place and for that to be required by law.
I recognise that amendment 127 puts in place guidance on that, and that goes a long way towards meeting those requirements. However, as I said previously, there is no legal requirement to apply that guidance, which weakens it. Although there might be recourse to judicial review, as members will know, you need particularly deep pockets to take such a course of action.
The bill would have been stronger if there was a legal requirement to apply the guidance and for risk assessments to be carried out for people who are being put on HDC, and that should have been stipulated in black letter on the face of the bill. It is a matter of regret that the Government is opposing that this afternoon.
Risk assessment was discussed in some detail at stage 2 and I lodged amendment 127 at stage 3 to address some of the concerns. At stage 2, the Risk Management Authority wrote to the Justice Committee to express its concern about what was being proposed by Liam Kerr in relation to the development of a risk assessment tool.
I know that the Risk Management Authority and the Parole Board have written again to the Justice Committee to express their concern about the return of similar amendments—amendments 138 and 139—at stage 3. The Scottish Government’s approach of setting out the detail of risk assessment in an operational protocol, which must be laid before Parliament, as I said, provides further reassurance about risk assessment arrangements, without presenting some of the practical problems that amendments 138 and 139 would cause.
Amendment 138 is identical to Mr Kerr’s amendment on risk assessment that was rejected at stage 2. Accordingly, all the arguments that were presented against the amendment at stage 2 continue to apply. Namely, there is no definition of “risk assessment tool”, so it is difficult to determine what the Scottish ministers would need to do to comply with the obligation. It is not clear what sort of risk assessment tool would require to be created. Would it be one to assist the decision to release a prisoner or one to assist the management of risk once the prisoner is released?
The creation of one risk assessment tool for all forms of early release on licence—temporary release, HDC and parole—would overlook the very different natures of those various forms of early release. The duty to create a risk assessment tool would apply to all forms of release from prison, including automatic early release and release at the end of a prisoner’s sentence. The Scottish ministers would be obliged to create a risk assessment process to assess the risk that was posed by a prisoner whom they were duty bound to release and who would be released unconditionally.
Amendment 138 would also duplicate existing risk assessment processes across all forms of early release on licence. There are existing statutory provisions that require risk assessments for the purposes of HDC, temporary release and parole. There is a duty to consult certain bodies, and it might be implied that those bodies are to have regard to the risk assessment tool. One of the bodies that must be consulted is the Parole Board, which is completely independent of the Scottish ministers. Any implication that the Parole Board is bound by a risk assessment that is developed by the Scottish ministers could call into question that independence. That could give rise to a potential challenge to the Parole Board’s decisions on parole under article 6 of the ECHR, which covers the right to a fair trial. Indeed, the Parole Board expressed concerns about such an amendment and wrote to the Justice Committee about the matter at stage 2 and ahead of stage 3, so it is disappointing that those concerns seem to have been ignored.
Amendment 138, as drafted, would mean that courts would have to take account of the tool when imposing a community sentence that is listed in section 3(2). In imposing a community sentence, the court is not assessing risk for the purposes of release from prison, so such a risk assessment tool would have very limited relevance. Courts are experienced in making assessments of risk, and we must guard against creating legislation that risks impinging on judicial independence.
I also note that amendment 138 seeks to reintroduce into the bill the word “offender”, which the committee sought to exclude at stage 2 and which Parliament has sought to exclude at stage 3.
Amendment 139 would duplicate the existing statutory requirement to conduct a risk assessment for the purposes of releasing a prisoner on HDC. In addition, and more pressingly, there is a significant drafting concern that would make amendment 139 unworkable as a risk assessment provision if it were to form part of the bill. The wording of the proposed new section makes it clear that it would apply when a person was subject to a curfew condition. That means that the section would apply only after a decision to release was taken and would preclude any of the provisions being applicable to pre-release risk assessment. Accordingly, the duties relating to risk assessment in proposed subsections (2) and (3) would be impossible to comply with, as those duties would apply only to prisoners who had already been granted HDC.
Amendments 138 and 139 seek to address risk, but primary legislation already requires that risk assessment be carried out prior to releasing an individual on HDC, temporary release or parole. Amendment 127, in my name, would place an obligation on the Scottish Government to prepare and publish an operating protocol on HDC that would set out the procedures behind the HDC regime, including the process for risk assessment, as I have said. I believe that that approach is more robust than what is proposed in amendments 138 and 139, and it would meet the intention behind those amendments of ensuring greater transparency in the risk assessment process.
Accordingly, I urge members to reject amendments 138 and 139, which are unnecessary and, in places, unworkable and should not form part of the bill.
I have nothing particular to add, other than to say to the cabinet secretary that it is abundantly clear from the drafting of the amendments what would be involved. I said specifically that other forms would not be precluded. I agree that it is regrettable that the cabinet secretary does not support the development of a robust risk assessment tool. I press amendment 138.