Victims and Witnesses (Scotland) Act 2014 (Consequential Modification) Order 2019

“A new fund providing more than a million pounds a year of practical help for victims of crime is set to be introduced in the coming months as part of the Scottish Government’s package of measures to improve the support for victims and witnesses in Scotland … The Victim Surcharge Fund will be established in the next few months and is likely to be administered by Victim Support Scotland”.

That press release was dated 13 August 2014.

A series of questions have been asked in the Scottish Parliament about when we are actually going to get these regulations. My Liberal Democrat colleague Alison McInnes, then Member for North East Scotland, asked in July 2015,

“what (a) criminal offences, (b) circumstances and (c) descriptions of offender can cause a victim surcharge to be imposed”.

She was told by Mr Michael Matheson, who by that time had taken over from Mr MacAskill as Scottish Justice Secretary:

“The victim surcharge is not yet operational, nor have the relevant provisions in the Victims and Witnesses (Scotland) Act 2014 been brought into force. Therefore, no surcharges have been imposed or payments made. The victim surcharge is due to be introduced later in 2015, ensuring that offenders contribute towards a fund specifically to support victims of crime. Preparatory work for the establishment and administration of the fund is ongoing … details of how it will operate, including the circumstances in which a surcharge is to be imposed, will be set out in subordinate legislation and will be subject to parliamentary approval in due course”.

Fast forward—or not-so-fast forward—to February 2016, when Ms McInnes was given a further answer from Michael Matheson:

“Preparatory work for the establishment and administration of the victim surcharge fund is on-going. The timetable for the introduction of the fund has been influenced by a number of factors, including further detailed consideration of viable options for delivery and the potential role of third sector or other organisations in this process”.

Then we get to an answer given to my colleague, Member of the Scottish Parliament for Orkney, Mr Liam McArthur, who asked in December 2016 what progress had been made in establishing the victim surcharge fund and when it was expected to be operational and issue its first payments. To this, he got the reply:

“It is the Scottish Government’s intention to establish the fund in 2017 and to initially impose the surcharge on offenders given a court fine. Further details of how the fund will operate will be set out in subordinate legislation, which will be subject to parliamentary approval in due course”.

So here we are at the beginning of 2017, three years after Royal Assent, and we are still talking about it being done “in due course”.

There were further questions of a similar kind. Mr Humza Yousaf, who had by this time taken over from Mr Michael Matheson, said on 17 July last year:

“Our intention is to announce further details on the VSF, following the summer Parliamentary recess”.

The then Conservative Member for North East Scotland, Liam Kerr, asked in October 2018 on what date the fund would become operational. Mr Yousaf, replying on 7 November 2018 said:

“In order to ensure effective operation of the victim surcharge in Scotland, an Order under section 104 of the Scotland Act 1998 … is required to amend section 24 of the Criminal Justice Act 1991 … which is reserved”.

That is the very point we are debating in relation to this order, but one notes that not until November 2018 did the Scottish Government ever say that there was any issue about trying to get a Section 104 order. Will the Minister tell us when the Scotland Office was first approached by the Scottish Government with regard to identifying the necessity for such an order? Mr Yousaf went on to describe the order and said:

“The UK Government have agreed in principle to this Order and have estimated that, once all the necessary steps are completed, it will come into force in summer 2019, subject to UK Parliamentary timescales. The Victim Surcharge (Scotland) Regulations, which will implement the surcharge, will be laid before the Scottish Parliament, as soon as practicable after the section 104 Order comes into force”.

In all fairness to the United Kingdom Government, they have held to summer 2019 reasonably well. In a reply to a parliamentary question from Liam McArthur last month, that timescale was repeated by Mr Yousaf in very similar terms.

It is widely agreed that this is an important provision. It is one that will actually give support to victims from the fund created, and it is a matter of considerable regret that it has taken the Scottish Government five years after legislating to even come up with a proposal on how their flagship policy might work. That is not a responsibility of the United Kingdom Government, but it would be very helpful for us to have some colour as to the detail of the proposal. For example, while it is important that we look at the position of victims, we also need to consider those who might have this sanction applied to them. What are the guidelines to ensure that they do not have so much taken out of their benefits that they then struggle to make ends meet, which might actually drive them, in some circumstances, to further crime? That is a detail we do not know and if the Minister has any information on that, it would be very welcome.

As I say, my Liberal Democrat colleagues in the Scottish Parliament have been pushing the Scottish Government hard to make progress on this and it is important that we have this order tonight. We very much welcome it and will certainly give it our support.

As to the amount of money not gathered as a consequence of the length of delay, the noble and learned Lord, Lord Wallace, is correct in his figures. The estimate is that around £1 million is available to be gathered in this way, but that of course depends on the details of the Scottish Government’s regulation, which I do not have. I am not sure whether that is an accurate reflection of the money or whether it is just speculation on our part. It may be that, once we have more detail on this, I can secure that information and place it in the Library. Of course, the avid Members of the Scottish Parliament may be better equipped to interrogate the Scottish Government further on these issues, about which I am afraid I have remarkably little information to satisfy noble Lords.