The Equal Opportunities Committee

Inquiry into migration and trafficking

The Committee continued its inquiry, this week hearing from witnesses in relation to migration and in particular, the media.

The committee heard from two panels of witnesses, firstly from academics and practitioners, and secondly from representatives from the media. They heard from: Professor Greg Philo, Glasgow University Media Group; Dr Gina Netto, Heriot Watt University; Dr Jairo Lugo-Ocando, Lecturer in Journalism Studies, Stirling University; and then from Paul Holleran, National Organiser for Scotland, NUJ; Stephen Abell, Director, Press Complaints Commission; John McLellan, Editor of the Scotsman, Johnston Press.

You can read the full transcripts of their evidence in the Official Report, or watch it on Holyrood.TV, and you can read more about the inquiry on the Migration and Trafficking Inquiry Homepage.

The Justice Committee

Stage 2 of the Legal Service (Scotland) Bill

The Committee continued to consider amendments to the Legal Services (Scotland) Bill at stage 2. You can read the full transcripts of the meeting on the Official Report, or watch it on Holyrood.TV. You can also read more about the bill on the Legal Services (Scotland) Bill homepage .

The Chamber

The Criminal Justice and Licensing Bill

In the final days before the summer recess, the culmination of the SNP’s justice policies in the form of the Criminal Justice and Licensing Bill, was finally passed by the parliament.

This legislation was introduced in Spring 2009, and has seen an eventful path through Parliament in the interim. Making up for the relative paucity of criminal justice legislation until then from this administration, this was a very large Bill, with a broad range of provisions including on sentencing, criminal law (including a rage of provisions to tackle serious and organised crime and the age of criminal prosecution for children), criminal procedure and disclosure of evidence during trial, licensing under the Civic Government (Scotland) Act 1982 and alcohol licensing. Some of these proposals were relatively technical and did not attract much attention, while others have courted considerable controversy and proved to be politically divisive until the end.

Many of the headline aspects of the Bill emanated from the Scottish Prison Commission’s report and recommendations, such as the introduction of a presumption against sentences of less than six months, the creation a Scottish Sentencing Council which would issue guidelines in order to improve consistency in sentencing, revamped community penalties in which offenders ‘pay back’ to the community.

Although the Bill initially contained a range of provisions on alcohol policy, including minimum pricing per unit of alcohol and a ‘social responsibility levy’, the government later decided to put these into a separate piece of legislation, the Alcohol (Scotland) Bill, so that they could be given thorough and adequate scrutiny in their own right.

The Justice Committee has spent much of the last year scrutinising this legislation during stages 1 and 2. They carried out an admirable and thorough job under the helm of its formidable and soon to be departing convenor, Bill Aitken, although the recommendations on the more controversial aspects of the Bill proved as politically divisive in the committee as in the rest of the Chamber. The Committee were also in the unusual position of having to consider fresh evidence in response to a number of amendments at Stage 2 which sought to introduce new provisions into the Bill, including on prostitution, stalking, sentencing for carrying knives, and lap dancing.

Many changes were made during the amendments in Stage 2, as the Labour dominated committee together with the Conservative convenor altered key parts of the bill. The proposed composition of the Sentencing Council and any guidelines it creates will only now take effect following endorsement by the High Court (these amendments were supported by the Liberal Democrats as well), and the proposals to introduce a provision against short sentences were deleted from the bill on the casting vote of the convenor. The committee also agreed (again on the casting vote of the convenor) to the Labour amendment to introduce a mandatory six month custodial sentence for any adult convicted of carrying a knife in a public place.

However, parliamentary rules meant that the government could introduce new amendments at Stage 3 which would reintroduce or amend some of the changes which took place during Stage 2. Thus, an amendment which would delete the new provisions on mandatory sentences for knife crime, and an amendment which would reintroduce the provisions on short sentences were introduced for the Stage 3 proceedings. In the latter amendment however, the proposals were changed to a presumption against sentences of three months and under, with an understanding that this would be supported by the Liberal Democrats.

Further Stage 2 amendments on lap dancing clubs and stalking were withdrawn following promises from the government that they would work together with the members who proposed them in order to introduce further revised amendments at Stage 3.

Just in time for the Stage 3 debate, the government were handed a political golden egg by the UK Conservative Party as the Justice Minister Kenneth Clarke made his big speech promoting a greater use of short prison sentences. This caused considerable embarrassment for the Scottish Conservatives who must have wished their British colleagues could have waited one day at least to make their announcement, and prompting one to wonder how many phone calls actually take place between their London and Edinburgh offices.

As this was the final chance to change this important piece of legislation, there were a considerable number of significant amendments to be debated before the final vote. The parliament extended their usual Wednesday half–day session and began at 9 am rather than after lunch, in order to fit everything in.

Stage 3 Amendments to the Criminal Justice and Licensing (Scotland) Bill

Below is a summary of the key amendments debated:

The Scottish Sentencing Council

The issue of what the role and composition of the Sentencing Council should be continued into stage 3. Robert Brown (LD) argued that for greater judicial involvement in the council, saying that the Lord Justice General should be consulted about the council’s business plan. His amendment was agreed to unanimously. Stewart Stevenson (SNP) argued that there ought to be small non–judicial majority on the council, and his amendment was rejected

Community payback orders

Robert Brown pressed a range of amendments on CPOs. One amendment sought to insert a definition of the purpose of community payback order back into the bill, this was disagreed to 62 — 64, with the SNP joined by the Conservatives in defeating it. Another amendment would enable Scottish Ministers to specify the standards with which a CPO must apply, which Mr Brown decided not to move after assurances from the Justice Secretary; and an amendment would require the Government to make an annual report to the Parliament on the success of community payback orders based on reports prepared by local authorities. This was agreed to 76 — 48, with government defeated by all the other parties.

A government amendment which would make it easier for CPOs to be transferred between local authorities was also agreed to 81 — 36.

Presumption against short sentences

The Government next moved the amendment which would reintroduce the presumption against short sentences, albeit in its revised version of three months, and not six. This amendment would also allow the parliament to amend, by secondary legislation, the period that the presumption applies to.

In pressing this amendment the cabinet secretary enjoyed reminding the chamber of the UK Conservative justice minister’s recent announcements against short sentences, and also about the report of the English prison commission, which commended the Scottish government’s policy direction.

Richard Baker (Lab) argued against this amendment saying it would mean that 38 per cent of convictions for assault and to almost one quarter of convictions for carrying a knife would not receive a custodial sentence. He also said that 68% of custodial sentences for domestic abuse are for sentences of three months or less, which may provide crucial time for the victim to make arrangements to leave an abusive partner. John Lamont for the Conservatives also spoke against the proposals saying that prison is there primarily to protect the public, and it would therefore be failing should this presumption be introduced. He also said that the report from the Parliament’s finance committee highlighted how expensive the extra community penalties would be and questioned whether the money was there to fund them.

There followed a good debate in which members reiterated old arguments, although there was also a good contribution from Dr Richard Simpson, who argued that the real problem with the ‘churn’ in the prison population was the increasing numbers on remand, which this legislation would do nothing to address. The amendment was agreed by to by 65 to 62, with the SNP supported by the Liberal Democrats, Greens and Independents, meaning that an assumption against sentences of three months or was now included in the bill.

Robert Brown pressed another amendment would ensure that a report on the progress of the CPO reforms would be laid before Parliament no later than five years after the act comes into force. This was disagreed to, with the SNP and Labour members voting against.

Patrick Harvie pressed an amendment which would replicate the government’s original proposal on a presumption against sentences of six months or less. He said this needed to debated by the Chamber once again because members needed to think about what prison is really for, or at least, what it is really ‘good for’. The cabinet secretary urged him not to press this amendment ‘in the spirit of co–operation’ and to allow the ‘Parliament to move on with a clear mandate’. Mr Harvie agreed.

Intoxication and sentencing

The cabinet secretary pressed an amendment which would reinsert a section in the Bill that provides that at the point of sentencing, a court must not consider it a mitigating factor that the offender was drunk at the time the offence was committed. This provision had been deleted during Stage 2 due to a Robert Brown amendment which argued that it was unnecessary, given that courts already do not view this as a mitigating factor. The secretary said the Lord Advocate agreed with him that this continues to be used as an excuse throughout courts, and that the change in the law was needed in order to ‘trigger a cultural change’.

The amendment was agreed to 47 (SNP) — 33 (Con and LD), with 45 (Lab) abstentions.

Knife crime and sentencing

The government moved an amendment which would delete the provisions inserted at Stage 2 introducing mandatory minimum sentences for knife possession offences. In moving the amendment, the secretary quoted from all the professional evidence that spoke against these proposals, and said that the judiciary should be given the discretion for deciding the appropriate sentences for these crimes.

Richard Baker pointed out that it was ‘a bit rich’ for the government to be arguing in favour of judicial discretion given the preceding sections of the bill, and he urged the chamber to heed to decision of the committee and reject this amendment. During his speech, he was applauded by families of victims of knife crime who had come to watch the debate.

Many members contributed to this part of the debate. Some highlighted the lack of evidence to support the mandatory sentences, and others highlighted the harm that knife crime causes. All paid tribute to those affected by knife crime and it was pointed out that the issue was not whether or not knife crime was a problem, rather it was what the best response to tackle it was.

In the final vote, the amendment was agreed by an extremely narrow margin of 63 (SNP, LDs, Greens, Ind) — 61 (Con and Lab), meaning that the section on mandatory sentences for knife crime was removed.

Serious and organised crime

Robert Brown moved an amendment which sought to modify the provisions in the Bill creating an aggravation by connection with serious and organised crime. Mr Brown’s amendment would introduce the need for corroboration with serious and organised crime. He argued that, although in common law aggravation does not require corroboration as long as that the main crime is proved by corroborated evidence, in the case of this particular aggravation an exception should be made given the very significant penalty of five to ten years in custody that it attracts. This was disagreed to 32 (LDs, Cons and Greens) — 88 (SNP and Lab).

Prostitution offences

Marlyn Glen (Lab) moved a series of amendments which would introduce new sections into the Sexual Offences (Scotland) Act 2009 which would make it illegal to engage in and to advertise paid–for sexual activities. The first section would make it an offence to buy sex using any form of payment including payment in kind, which Ms Glen argued recognised and dealt with the exploitation, violence and abuse that are a reality for the majority of individuals who sell sex. She said there was particular pressure for this issue to be dealt with in the run up to the Commonwealth games.

Her amendment was supported by her Labour colleagues, but argued against by the Conservatives led by Bill Aitken who pointed out the evidence heard in the Committee on this subject was mixed. Margo MacDonald also pointed out that the definition of what counted as ‘sexual activity’ was ill–defined, and also that trafficking is a lesser problem in Scotland than in England and Wales because the Scottish police are much better informed about the sex industry. 

These amendments were disagreed to 44 — 78, with only the Labour party in favour.

Children and the age of criminal prosecution

The Bill as introduced sought to amend the current legal provisions in order to prevent any child under the age of 12 being prosecuted in the criminal courts, although it did not alter the legal presumption that no child under the age of 8 can be guilty of any offence. This would mean that a child between the ages of 8 and 12 would still be regarded as having the capacity to commit a crime, but they could only be dealt with through the children’s hearings system rather than the courts.

In pressing for his amendment, Robert Brown argued that this half–way situation remains unsatisfactory, as it continues to leave Scotland open to criticism under the United Nations Convention on the Rights of the Child. His amendment would give ministers the power by affirmative instrument and therefore only with the consent of the parliament, the power to raise the age at which children can be prosecuted at any point in the future.  This amendment was rejected 15 — 108, with only the Liberal Democrats in favour.

Victims’ representations at parole board hearings.

Margaret Curran (Lab) moved an amendment which would allow victims the right to make oral representations to parole boards. Currently, they are only allowed to submit their views to the board in writing. She said that written representations are often difficult for witnesses to put together and victims may find it difficult to convey the full impact of the crime in writing. 

She failed to attract the support from any other parties however, and her amendment was defeated 43 — 78, with only Labour in favour.

Retention of samples etc from children referred to children’s hearings

The Bill when introduced included provisions to extend existing police powers in relation to the retention of samples where there has been an unsuccessful prosecution, or where a child is dealt with through the children’s hearings system in relation to certain sexual and violent offences.

The Minister for Community Safety, Fergus Ewing, introduced an amendment in response to a concern raised in the Committee that forensic data could still be retained from children who had been involved in only minor assaults. His amendment would mean that the list of offences for which samples can be retained will be drawn up by reference to a particular degree of seriousness rather than by reference simply to a list of offences. This will mean that forensic data will only be collected from children in relation to serious offences. This was agreed to unanimously.

Licensing and lap–dancing clubs

Sandra White (SNP) continued with a group of amendments which she had also taken to the Committee during Stage 2 concerning the licensing of lap–dancing clubs. Her original amendment sought to add new provisions to the Bill giving local authorities the power to apply a specific licensing regime to lap–dancing and other adult entertainment venues which would give local authorities the power to say that no licences should be granted for venues in a particular locality. Ms White said her new amendment was a refinement on the previous one, and she reiterated that it was not about banning lap–dancing clubs, rather it was about giving local people the power to control what takes place in their communities. She was supported by her SNP colleagues, but could attract no further support and the amendment was defeated 45 — 76.

That concluded consideration of the final stage 3 amendments to the bill, and the newly amended version would now be voted on in the round (see below). You can read the full transcripts of this part of the debate in the Official Report or watch it on Holyrood.TV

Stage 3 Debate on the Criminal Justice and Licensing (Scotland) Bill

The amendments took the chamber seven hours to get through (minus their break for lunch), so the chamber were no doubt thoroughly familiar with the main arguments surrounding it by the time the final debate came later that afternoon.

The Cabinet Secretary opened the debate and he paid tribute to all of those involved its long journey through parliament, saying that although many issues in it have proved divisive, it has also prompted good debate in the Parliament not least given that it contained provisions on around 100 topics. He then spoke about some of the key sections of the Bill, beginning with the provisions on serious and organised crime, saying that the four new measures of the statutory aggravation and the offences of involvement, direction and failure to report, will enable more successful prosecutions in this area.

He said that the increase of the minimum age of prosecution from 8 to 12 was an important move which would bring Scotland in line with ‘most’ of Europe. He acknowledged that there were different opinions in the Parliament on community payback orders and short prison sentences, but he reminded everyone that the proposals are for a ‘presumption’ and therefore that judicial discretion remains. He said that this was a ‘positive bill’, and that although there are areas on which the chamber is divided, the areas on which members are united are much greater.

Richard Baker spoke next for Labour. He said that although the Bill had ‘arrived’ in the chamber in a good condition, with approaches to sentencing and violent crime that his party could support, the Bill as it now stood was very different and with measures which they could not support. He said that contrary to what the cabinet secretary had said, there was much more that was divisive in the bill than that united people. He went on to attack the proposals relating to sentencing, reiterating the numbers of people would be released under the government’s proposals, and claiming that the plans are under–funded and will be a strain on an already overstretched system. He pledged to continue the fight for tougher sentences for knife crime on behalf of the victims, saying that this was not the end of their campaign. He called the proposals on short sentences and knife crime ‘lines in the sand’ that had been crossed, which meant that his party could not support this Bill and would vote against it.

Bill Aitken spoke for the Conservatives. In a very short speech, he said that the proposals on sentencing had overshadowed the rest of the Bill, which otherwise contained many praiseworthy proposals particularly on serious and organised crime and the age of criminal responsibility. However, he said that the proposals on sentencing will cause ‘immeasurable damage’ in the years ahead, because very short sentences are needed for a final deterrent for those who repeatedly flout their community penalties. He argued that had the proposals on sentencing not been in the Bill then his party could support it, but as it stood this would not be possible.

Robert Brown spoke next for the Liberal Democrats. He disagreed with Bill Aitken and Richard Baker, arguing that the Bill as it now stood was a considerable improvement from it as it was first proposed. He said that by making the Sentencing Council an advisory council, it had been changed for the better and he also praised the co–operation of the cabinet secretary and his colleagues for work to make sure that provisions are in place to make community penalties work. By changing the presumption to three months, the proposals were workable and practical, and he quoted Churchill’s famous dictum that ‘the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country’.

Closing the debate, the cabinet secretary reminded the chamber that because of the government’s minority status, this Bill had not been ‘foisted’ on the Parliament, and there were therefore parts of the Bill that have had to be bent to the will of the parliament. He argued that the government have adopted a pragmatic approach and tried to work in a spirit of consensus in order to make the legislation and get it through Parliament. He said that the democratic will of the parliament was in favour of the proposals on presumption against three months sentences and against mandatory sentences for knife crime, so it was therefore ‘strange’ that the Labour and Conservatives would be prepared to vote against the whole Bill. During an intervention, Richard Baker suggested that if the Bill fell, emergency legislation could be passed to enact the parts of the Bill over which there was broad support, a proposal which the cabinet said was “utterly ridiculous”. In a final plea tothe opposition, he reiterated that the final version of this Bill had been voted on by the parliament and not just by the SNP and therefore it should be passed by all the members in the chamber.

At the final vote, the Bill was passed by an uncomfortably narrow margin of 64 — 61, marking the end of a very eventful year for justice policies in the Parliament, and arguable also marking the beginning of a new chapter for criminal justice in Scotland.

You can read the full transcripts of the final stage 3 debate in the Official Report, or watch it thing on Holyrood.TV.

You can also access all the documents relating to the bill including helpful explanatory SPICe documents, on the Criminal Justice and Licensing (Scotland) Bill homepage.

Finally, you can also read the press coverage in the CJScotland Newsblog

Members’ Debate on Perspectives of Children and Young People with a Parent in Prison

At the end of a very long day, there was a members’ business debate in the name of Aileen Campbell. The motion debated was:

“That the Parliament welcomes the report, Perspectives of Children and Young People with a Parent in Prison, issued by the Commissioner for Children and Young People in Scotland and Families Outside and which explores the experiences of children and young people who have had a family member sent to prison; welcomes the consideration that has already been given to this important issue during the proceedings of the Criminal Justice and Licensing (Scotland) Bill; notes with concern the finding of the report that each year as many as 16,500 children across Scotland, including the South of Scotland region, will experience the imprisonment of a parent or carer, and believes that a cross-party approach is the best way to ensure that the rights of the children of offenders, who are often the innocent and forgotten victims of crime, are respected in the legal system”.

You can read the full transcripts of the debate in the Official Report, or watch it on Holyrood.TV

First Minister’s questions

Scottish Labour’s promise to keep the issue of sentencing and knife crime in the political spotlight were demonstrated during FMQs the following day. Iain Gray asked why there are mandatory sentences for carrying guns but not for knives, and he accused the government of letting down the victims of knife crime. He went on to promise that his Party would not do the same, saying that the mandatory sentences proposal would appear in their manifesto next year.

The First Minister replied that one of the reason guns and knives are treated differently in legislation is because guns are used for causing harm, whereas knives can be used for many benign things as well as the harmful ones. He also said that his Party had enormous respect for victims of knife crime, but that mandatory sentences just would not work to address the problem. He also pointed out that Labour did not use their time in office to introduce mandatory sentencing policies and that the SNP approach had attracted majority support across the chamber.

You can read this question in the Official Report

Questions to the Justice and Law Officers

Corporate Manslaughter and Corporate Homicide Act 2007

John Park (Lab) asked the Solicitor General for Scotland about prosecutions for corporate homicide in Scotland and whether he thought the existing legislative framework was sufficient. He welcomed recently released figures which showed the decline in workplace deaths in Scotland over the past year, and he and he called on employers to engage more directly with trade unions to tackle the health and safety in workplaces.

The Solicitor General, Frank Mulholland, replied that although there has been no prosecutions to date under the Corporate Manslaughter and Corporate Homicide Act 2007, the Crown Office and Procurator Fiscal Service was involved in directing a number of joint investigations by the police and other enforcement authorities that may result in a prosecution under the 2007 act in the future. He also said that his view was that the current legislative framework was sufficient, and that there has been a real improvement in the prosecutions in this area, since a specialised health and safety department has been established in the Crown Office. 

Police use of tasers

In light of the controversial Strathclyde police pilot of tasers, Patricia Ferguson (Lab), whose constituency is in the Strathclyde police area, asked the justice secretary whether he thought that the use of tasers was legal or not. She said that a number of human rights groups and experts in this field argue that the use and possession of tasers is ‘legally dubious’, and that, if the government have received any advice on this subject, then they ought to share it with the chamber. She also called on the government to carry out research into the use of tasers in connection with ‘nearly 300 deaths’ in Canada and America.

The Cabinet Secretary replied that firearm legislation is the responsibility of the UK Government, that the deployment and use of tasers is an operational matter for chief constables and that Scottish ministers have no role in promoting legislation on tasers nor in authorising their use. He said that there was no need to carry out research into deaths in North America because ‘that is not relevant here’, and he said that he had great faith in the Scottish police to act proportionately and legitimately.

The impact of drugs on communities

Ian McKee (SNP) asked about a recent report from the Joseph Rowntree Foundation report entitled, ‘Understanding Drug Selling in Communities’. Mr McKee said the report argued that local drug sellers could have a positive effect on a community by spending cash locally, deterring other crime and making the supply of consumer products available to the community at reduced prices. He acknowledged that these claims were quotes by the author Neil McKeganey of others’ work, but he said it was “naïve and foolish in the extreme” to cite the so–called benefits of drug dealing in an uncritical way, which could be used to justify almost any crime, and he questioned whether the author was a fit person to advise the government on their drugs policy.

The minister for community safety, Fergus Ewing, replied that the government ‘objected in the strongest possible terms’ to any suggestion that there are anything other than negative affects of having drug dealers in any community. He dodged the issue of the report’s author in advising the government on drugs policy, instead praising all those who work to tackle drugs throughout Scotland.

In a supplementary question, Richard Baker asked whether the government would consider making greater use of drug treatment and testing orders., to which the minister answered that the government are committed to DTTOs and that have recently extended them to lower tariff offences in a pilot scheme.

Antisocial Behaviour Orders

Helen Eadie (Lab) said that there was concern in her constituency area of Fife about the lack of ASBOs that were being issued to tackle antisocial behaviour that was occurring in and around empty homes in the area, Fergus Ewing replied that the government prefer to focus on the good preventive work being done by practitioners, which reduces the need for enforcement action after the event, than on ASBOs, and that although the orders are available to use where it considers appropriate, the government did not believe they were the solution to the problem

The impact of drugs on communities (again)

There had clearly not been communication between colleagues in within the SNP party, and Kenneth Gibson (SNP) asked a question about the same report raised in the question by Ian McKee (see above). He also took offence with the arguments in the report, and called on the government to confirm that they have lost faith in Professor McKeganey. The minister adopted the same approach as he had with the previous question, by agreeing with the criticisms of the report and dodging the issue about the author.

Antisocial Behaviour Orders (again)

There were many repetitions in the questions this week, and David Whitton (Lab) also brought up the issue of antisocial behaviour, praising the adoption by Strathclyde Police and Glasgow City Council of so called ‘park antisocial behaviour orders’ to address the issue of youths using parks ‘as battlegrounds’ or meeting places for underage drinking sessions. The Minister replied by reiterating that he supported local authorities to use the powers that are available to them, and that ASBOs are just one tool in the tool box, but that it was important that agencies tackle the causes, not just the symptoms, of antisocial behaviour.

Police use of tasers (again)

Robert Brown (LD) asked another question about the police use of tasers. He said he wanted to challenge the government’s assertions that the police in Scotland do not require ministerial approval to possess or use tasers because of the principle of crown immunity. He said that claiming that the crown immunity applies to chief constables was a very wide–ranging claim, and he wondered whether this would mean that a police force could not be sued for reckless or negligent use of a taser, for example, or for intentional but unjustified use of a taser.

The justice secretary replied that section 54 of the Firearms Act 1968 does not apply section 5 to crown servants, which include the police. This means that the police are exempt from the requirements that ministers provide authorisation for the purchase, possession and use of tasers. He said however, that if an officer or a force used tasers of firearms inappropriately, they would face potential action.

Antisocial Behaviour

Karen Gillon (Lab) asked another question about antisocial behaviour, although with a slightly different bent in that she wanted to know what could be done to address the specific issue of tenants causing antisocial behaviour. She called on this to be addressed in the Housing (Scotland) Bill when it comes before Parliament after the summer recess, and the Minister replied that he would certainly engage with the relevant Minister on this matter.

You can read all the questions in the Official Report, or watch them all on Holyrood.TV.

Written Questions

There were written this questions this week about the evaluation for the latest DTTO pilot, about the number of procurators fiscal, and about the government’s strategy for victims.