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Parliamentary Report for the 23rd – 27th November, 2009

2009 December 2
by Mary Munro

Image © Scottish Parliamentary Corporate Body - 2011

This week saw the Stage 1 debate of the Criminal Justice and Licensing Bill take place in the Chamber. This gave all the parties the chance to fully debate their stances on the different parts of this legislation, in wake of the Committee’s report which was published a couple of weeks ago. The Sports and Health Committee issued a call for evidence in the week that the Alcohol Bill was published, and the Justice Committee dealt with an item of subordinate legislation.

The Justice Committee

Subordinate Legislation

The Committee were joined by the Cabinet Secretary who spoke to move an item of subordinate legislation, which related to mutual assistance from foreign countries in criminal investigaton or proceedings. This order would add Albania, Bosnia and Herzegovina, Croatia, Israel, Montenegro, Serbia, Switzerland and the former Yugoslav Republic of Macedonia as participating countries in relation to a number of provisions in the Crime (International Co-operation) Act 2003. The Cabinet Secretary spoke briefly about the Order, and after a number of questions, the Committee agreed the motion.

You can read the transcripts of this in the Official Report, and read more details of the Order in pages 1 – 16 of the Committee Papers

Health and Sports Committee

Call for evidence on the Alcohol etc (Scotland) Bill

The Government launched the Alcohol Bill on Wednesday, which contains a range of measures aimed at tackling Scotland’s relationship with alcohol. The key provisions in the Bill are to:

  • Introduce a minimum sales price for a unit of alcohol
  • Introduce a restriction for off–sales on supply of alcoholic drinks free of charge or at a reduced price
  • Make provision in law with respect to the sale of alcohol to under 21s
  • Restrict the location of drinks promotions in off–sales premises
  • Introduce a requirement for licence holders to operate an age verification policy
  • Make provision in law for a social responsibility levy on licence holders

The Government are leading this as public health legislation rather than criminal justice legislation, although the provisions contained in it did initially belong to the Criminal Justice and Licensing Bill. The lead committee is therefore the Health and Sports Committee, which is convened by the SNP Member Christine Grahame.

The day after the Bill was launched, the Labour party publicly announced that they would not be voting with the Government on the key issue of minimum pricing, having looked as though they might support the these measures until recently. The Liberal Democrats and the Conservatives are also opposed, which means that the Government will not secure enough support to get it through Parliament. Nonetheless the Committee is calling for evidence and will begin Stage 1 scrutiny in the New Year.

The Chambe

Criminal Justice and Licensing Bill Stage 1

On Thursday, the Parliament held the stage 1 debate for the Criminal Justice and Licensing Bill. This is takes place following publication of the relevant Committee stage 1 report, and it gives the whole of the Parliament a chance to debate and vote onthe proposed legislation. The Committee agreed to the ‘general principles’ of the Bill, although disagreed with some of the key proposals including the presumption against custodial sentences of 6 months and under. If Parliament also agrees to the ‘general principles’ of the Bill, then particular parts of it can be modified by way of amendments during Stages 2 and 3. Because the Bill is so large, the debate took place in two parts, beginning in the morning and concluding in the afternoon. The length and complexity of the Bill also meant that not every aspect of it was covered in debate.

The Cabinet Secretary introduced the Bill, and began by talking about the provisions for serious organised crime, which create 3 new offences including ‘failure to report serious organised crime’. The Committee report said that although it strongly supported the intentions behind this part of the Bill, they were unsure whether the Bill as drafted would achieve its stated aims, primarily because of the definitions used. In his speech, the Secretary defended these saying that the wording had to be wide because serious and organised crime is wide ranging and evolving, but that although the definition did need to be broad, the Government were considering introducing an amendment at Stage 2 to modify it. He also defended the provisions relating to ‘failure to report’, saying that it was not the legislation’s intention to prosecute those who inadvertently discover that another person may be involved in serious organised crime during the course of their employment.

He went on to speak about the parts of the Bill that would create a Scottish Sentencing Council with the ability to develop sentencing guidelines with the stated aims of improving consistency, transparency and public confidence in sentencing. There was no fixed agreement on this subject from the Committee, although they agreed that the public’s perception of inconsistency was in itself problematic. However, they felt that issuing sentencing guidelines to address this problem would compromise other fundamentals of justice. The Cabinet Secretary said that the Government were considering the Committee’s thoughts on how to achieve these aims without tempering the independence of the judiciary.

Robert Brown (LD) intervened as the Secretary talked about the new single community penalty, the community payback order or CPO, to say that this title did not capture the important rehabilitation element of the order. Mr MacAskill replied that he could now guarantee that up to 20% of the order would be spent on some form of rehabilitation, such as work on literacy, drug or alcohol problems. He also spoke about the additional resources that would need to be in place in order for these orders to work, which was another point highlighted by the Committee, saying that they have already provided extra funding for community service both this year and next year, which will also help the transition into the new regime.

During another intervention, James Kelly (the new Justice Committee Member who has taken over as shadow deputy justice spokesperson for the Labour party) asked what will be cut from the Community Justice budget in order to fund the increase that will arise from the scrapping of short custodial sentences. The Justice Secretary replied by blaming Westminster for budget cuts and saying that those who deliver community service have assured him that, although it will be difficult, they will manage the expected increase in orders.

The Secretary then went on to speak about one of the most controversial provisions in the bill: the ‘presumption’ against short custodial sentences. This received the most attention in the press, both because of its controversial nature, and also because the Committee were equally divided on whether or not to support it, the final rejection being decided by the casting vote of the convenor. The Committee did agree with the evidence that had been heard in evidence that there is little in the way of rehabilitation that can be achieved in short sentences and also that they serve little deterrent effect.

The Cabinet Secretary quoted to the Chamber from the Sheriffs Association who said that short custodial sentences should be giving sparingly, and from the Chief Executive of Victim Support, who spoke in favour, saying he was ‘disappointed’ that these provisions had not been supported by the Committee. In an intervention, Richard Baker (Lab) pointed out that several crimes of violence would result in a non–custodial penalty should the measures be passed, to which the Cabinet Secretary responded that that because the legislation would only introduce a presumption , sentencers would still be able to override this and impose a prison sentence if they deemed necessary to do so. Mr MacAskill told the Parliament that he and his team had examined the Committee’s reportwith great care, but they were unable to find anything that explained why some Members of the Committee opposed these plans. He gave no indication that the Government were working on any amendments relating to these provisions, and he called on the Parliament to support them.

Finally, he spoke about the parts of the Bill that relate to the retention of forensic data, which would bring the law on the retention of fingerprints and other forensic data into line with current law on DNA retention. The Bill would also allow the retention of forensic data taken from children who are dealt with by the children’s hearing system for committing certain violent or sexual offences for up to the three years. The Secretary said that work was underway on drawing up a list of relevant sexual and violent offences committed by children that will trigger retention of forensic data and that they always sought to strike the correct balance between the rights of individual citizens and the need to keep communities safe.

Bill Aitken spoke next on behalf of the Justice Committee, as is the convention in Stage 1 debates. He said that he presented the report with a mixture of ‘pleasure compounded with relief’: he felt that the Committee had produced a fair, balanced and measured report, but he was relieved that the long, convoluted process was now at an end.

He said that the most difficult parts of the bill to deal with were the more controversial parts which cross party lines, and he said that he hoped for some movement on these issues before stage 2. He said that the most controversial issues were around the sentencing proposals, and that although the different views may never be reconciled at the end of the day, the differences in members’ views were perhaps less than first appeared the case. He spoke about the difficulty the Committee had in reaching a consensus about the role and operation of the sentencing council, and he also reminded MSPs that Henry McLeish had downplayed the significance of a sentencing council when he had given evidence.

He said that Community Payback Orders had been broadly supported by the Committee, although they strongly believed that they must be adequately resourced, and it had been difficult to come to a conclusion about whether or not this was the case at this stage.

Mr Aitken was speaking on behalf of the Justice Committee, and he therefore had to be more restrained than he perhaps wanted to be during his discussion about the presumption against short sentences. He said that although many academics were in favour of the Government’s proposals, the judiciary ‘who actually worked in the courts’, disagreed, and he said that this issue was therefore not resolved.

He also spoke about the proposals on serious and organised crime, saying that although the Bill was well intentioned, he was not convinced that the Government had got it right on this occasion.

The age of criminal responsibility also caused some concern for the Committee. Although it accepted that Scotland is not in line with other jurisdictions, it was also necessary for there to be some protection against the activities of ‘the very small minority of youngsters who can do pretty serious things.’ He therefore called for reassurances that there were a sufficient range of disposals in the children’s hearings system for children under the age of 12.

He said that whether the provisions relating to the retention of samples would extend to those who are offered alternatives to prosecution required further clarification, given that this would not be in proportion to such a measure.

The parts of the bill which deal with disclosure of evidence in court had caused considerable anxiety, although the rational was understood, and he said that these proposals should be kept as simple as possible. He also spoke about the parts of the Bill dealing with licensing, saying that most of these measures were common sense, although he drew Parliament’s attention to a number of areas, such as the provision of antisocial behaviour reports to licensing boards.

Richard Baker spoke next for Labour. Calling this legislation the Government’s ‘supposed flagship bill on law and order’, he said it involved many exercises in consolidation and technical proposals. He said that the Committee were correct to vote against the presumption against sentences of six months or under, because they were ‘unworkable, unfunded and unjust.’ He said that these proposals would apply to 40 per cent of those convicted of indecent assault, 85 per cent of those convicted of assault and two thirds of those convicted of knife crime, which would send out the wrong message to society. He attacked the Cabinet Secretary’s assertion that the declining confidence in community sentences can be blamed on the previous Administration, saying that this is happening under this Government’s watch. He painted a dismal picture of the current state of community orders, saying that one third are breached and only a fraction start on time, and he said that the proposals would result in a shortfall of some £66 million in the community sentence budget which is not provided for in the Financial Memorandum. He argued there was a need for ‘front–loaded funding’ for community sentences, because it will be a while before prisoner numbers and therefore the prisons budget can be decreased.

In response to an intervention from Robert Brown, he said that the Labour Party were opposed in principle to a presumption against short–term sentences, but that they did believe in robust and effective community sentences, many of which they had pioneered when they were in office. He said that his party were proposing and would pursue a policy of mandatory minimum sentencing for knife crime, because it was time to send out a clear message that if someone carries a knife then they will go to jail.

Mr Baker said that his party supported the broad proposals relating to the sentencing council, although they believed it should have a judicial majority, and it should have a narrower remit than that contained in the bill. He also said that he would not oppose the changes to the age of prosecution for children, though he wanted the Crown to retain the right to prosecute in exceptional circumstances.

He also said that the proposals on tackling serious and organised crime were positive, but given that the Government have said they would only apply to two or so cases a year, the impact would be minor.

Overall, he said that the positive proposals in the bill were far outweighed by the negative, and that his party would only let the bill proceed to Stage 2 because amendments can be lodged at Stage 2 to tackle violent crime. He said that the ‘reckless’ presumption against six–month custodial sentences and the Government’s unwillingness to take action on knife crime were ‘lines in the sand’ that if crossed in the final stages, would result in Labour voting against the bill.

Because Bill Aitken had already spoken in the debate on behalf of the justice Committee, it was up to his deputy, John Lamont, so speak for the Conservatives.

He said that his party welcomed some parts of the bill, such the plans to ban mobile phones from prison, and the extension of the upper age limit for jurors. He spent most time talking about the sentencing provisions in the Bill, reiterating points that had been made about the need to make sure that CPOs are adequately resourced, and that if faith in community sentences were to increase then there needed to be much greater enforcement of breaches as well. He called on the Government to change their minds about the community court in Glasgow, saying that such a court would ensure both that justice was done, but also that it was seen to be done.

Mr Lamont pointed out that those who argued that short prison sentences do nothing in way of rehabilitation are forgetting that prison is also there to deter, to punish, and to protect the public. He said that short custodial sentences offer sheriffs and judges the option of dealing with persistent offenders who continuously breach community sentence orders by giving them a short, sharp shock to ensure that they do not reoffend, and that they also provide respite to communities that are affected by persistent offenders.

He spoke about the licensing parts of the bill, saying more consideration was needed about their effects on charitable organisations and community groups.

Robert Brown, another Justice Committee member, spoke next for the Liberal Democrats. He began by saying that this debate was taking place in a different financial climate from when the Scottish Prisons Commission reported and the bill was conceived, and that it was therefore important to ask whether particular proposals are essential or just useful.

He said that aiming to reduce short–term sentences was a no–brainer given its cost and lack of long term success at reducing crime, but it was also imperative that the Government fund CPOs if the public are to have confidence in the community alternatives. He said that he knew from visits to CJAs that increased funding was having an impact in the quality and speed of community penalties, but that the quality of different projects was still patchy. As Richard Baker before him, he also said that if any savings were to be made from the prisons budget as a result of a reduction in prisoner numbers, this would only come about in the longer term and the Government therefore needed to provide bridging finance to ensure that community penalties were adequately resourced so they are able to achieve the real differences that they have the potential to do.

He spoke about the Liberal Democrat’s ‘partial way forward’ of applying the presumption only to sentences of three months or under in the first instance, which he said would reduce the organisational and financial pressure. He said that there was a difference in the sorts of crimes attracting sentences of under 3 months and those of between 3 to 6 months, the latter of which ‘tended to look like more serious crimes.’ He also criticised the Government&r;s decision to not proceed with the Community Court in Glasgow, saying this was a consequence of the Government’s ‘firm but inadequate’ decision making.

His criticism was not only reserved for the Government however: he attacked Labour’s position on criminal justice for attempting to give the impression of ‘ceaseless activity in fighting crime’ and appearing tough in order to ensure favourable headlines in the tabloids, despite the knowledge that short sentences do not work.

He spoke about the social profile of those in prison, speaking particularly about women in custody, saying that it was clear that society had failed these people, and it was very likely that their children would be amongst the next generation of offenders. He also said that, although the Scottish Sentencing Council would be useful body, the annual running costs could probably not be justified in the present financial climate. If it did proceed, it was imperative that any guidelines that the council did produce be endorsed or amended by the appeal court in order to ensure there was a separation of powers.

He said that his party would support this Bill, but that a great deal of work remained to be done to get it right, and that he expected his views to be addressed as it proceeds.

There proceeded a lengthy and well informed debate in which 21 other Members spoke and the final vote took place, in which there was unanimous support for the Bill’s general principles. All the speakers defended their party position, and reiterated the points that had been made in the opening speeches. Aileen Campbell (SNP) also spoke about the effects of prison on the children of those in prison, and Cathie Craigie (Lab) said that the Cabinet Secretary was ‘having a laugh’ with the presumption against short sentences, saying that she had multiple examples from her constituency which showed that short sentences do work. Rona Grant spoke about the changes that the bill makes to harassment orders, which had not been mentioned in so far in the debate. Nigel Don spoke about the Committee process of the bill scrutiny, saying that there was a surprisingly long list of issues which the Committee could not reach agreement on, and he argued that this Bill would need considerable time to be scrutinised in both sections 2 and 3. Mike Pringle was among others who suggested that the cost of establishing the sentencing council should instead be spend on making CPOs work and Helen Eadie (Lab) spoke about her experience collecting petitions on mandatory sentences for knife crime and speaking to those who had been affected.


Minimum pricing of alcohol

Although none of the parties chose minimum pricing as their topic for First Minister’s questions, the First Minister nonetheless couldn’t resist bringing it up himself, saying this was a ‘day of shame’ for Labour, who chose to put ‘political advantage before the public health of Scotland.’ Annabel Goldie goaded Labour for their dallying with this issue, saying they had ‘finally seen the light, or found a backbone’, by following the Conservatives and voting against the government. See the Sports and Health Committee above for more information about the Alcohol Bill.

Air gun legislation

Angela Constance (SNP) used her question to allow the First Minister to talk about firearms legislation which is currently reserved to Westminster, but which the Scottish Government have been vigorously campaigning to be handed over to Scotland, so that it can be in line with the rest of justice legislation. Their claims have been bolstered recently by the Calman Commission, which recommended that this legislation be returned to Holyrood competence.

The First Minister said that the Cabinet Secretary for Justice has written to the Home Secretary in order to secure agreement from the UK Government to devolve legislative responsibility for air weapons, but they had said that they cannot do so before the general election, and the UK Conservative party have said that they would delay further devolution of powers if they are elected next spring. He said that if there was consensus within the Scottish Parliament about legislation on airguns and other measures including drinking-driving limits and speed limits in Scotland, then they could be implemented before the general election, and he said that the Liberal Democrats have already indicated that they are willing to back these measures.

There were supplementary questions from the other parties: Robert Brown (LD) pointed out that there was already a range of offences which covered using airguns in Scotland, and that it was important that these laws were enforced as well. Margaret Curran (Lab) spoke about the case of a boy who was killed by an air rifle who’s family live in her constituency, and she called on the First Minister to pay tribute to the family for the campaigning they have done on this issue. Bill Aitken said that if the Government’s policies on a presumption against short sentences were to become enacted, then many of the offences that currently exist for air–gun legislation would result in a non–custodial sentence. The First Minister replied that those who commit serious offences would not receive a short sentence anyway, and he called on the Conservative party to support the further devolution of powers.

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