Victims and Witnesses (Scotland) Act 2014 (Consequential Modification) Order 2020

Motion to Consider

Moved by

To move that the Virtual Proceedings do consider the draft Victims and Witnesses (Scotland) Act 2014 (Consequential Modification) Order 2020.

The Motion was considered in a Virtual Proceeding via video call.

My Lords, the draft order, which was laid before the House on 25 March 2020, is part of the Government’s ongoing commitment to devolution.

I start by thanking our police forces for the vital work they carry out on a daily basis. Throughout the Covid-19 epidemic, I am sure that noble Lords have heard of shocking cases of police officers and staff being purposefully spat at or coughed on. In Scotland alone, during the first three weeks of lockdown, there were more than 400 crimes against police employees, and more than 100 cases had a Covid element; 174 were recorded as assaults on police officers.

However, police assault is not confined to the pandemic. Indeed, the honourable Member for Edinburgh West, speaking in the other place a few weeks ago, provided a moving account of her own family’s experiences of facing assault while working in the police service. This is not acceptable, and I am pleased to say that the order before us today highlights how Scotland’s two Governments have been working closely together to ensure that police in Scotland have greater access to physical and mental support services when these dreadful assaults happen.

I will begin by providing some background to the order, which is to be made under the Scotland Act 1998. This Act devolved powers to Scotland and legislated for the establishment of a Scottish Parliament. Scotland Act orders are secondary legislation, made under the Scotland Act 1998, which are used to implement, update or adjust Scotland’s devolution settlement. The order before noble Lords today is a Section 104 order which allows for necessary or expedient legislative provision in consequence of an Act of the Scottish Parliament. It is positive for the union and for the effective functioning of devolution that the UK Government fulfil the function of passing Section 104 orders where legislative provisions are necessary or expedient.

My Lords, I endorse all of the comments made by the Minister in his introduction, but I would like to use this opportunity to underline a number of key points and to ask a couple of questions to be answered at the end of the debate.

I too start by praising the work of police officers across Scotland, and their support staff, over the last three months. This has been a difficult time for them, trying to enforce lockdown conditions which, while clearer in Scotland, were not always straightforward. It is to their immense credit that after a few years of real difficulties in Police Scotland—politically and managerially, and in its governance—police officers and support staff have risen to the challenge with real dignity, and a firmness that has made a real impact. We should thank them for that.

The order is important and we of course should endorse it in the normal fashion. It is right and proper that Section 104 orders are part of the system of devolution in the UK, but it is also right and proper that we work in partnership to deliver them and ensure that the Scottish Parliament can implement its legislation.

I have some reservations about earmarking funding in any situation such as this, but I recognise the absolute benefits of this funding for the services and for police officers who have been subjected to assault. While restitution orders are a useful mechanism for raising that funding, their purpose is also to provide more deterrence against attacks on police officers and support staff in the years to come.

For that reason, these orders are welcome. There has been a good, healthy debate in the Commons, and the Scottish Parliament has passed the legislation, and we should support it too. However, I have two questions to pose to the Minister. First, is this order conditional for the Scottish Parliament and the Scottish Government to go ahead with implementation and enforcement of the orders themselves?

My Lords, there is no dispute that this legislation, in the form of a statutory instrument, should pass. What is more surprising, as has just been pointed out by the noble Lord, Lord McConnell, is that it has taken so long to come before us. I associate myself with his request for some transparency as to why that should be.

For part of my professional life, I worked very closely with the police, alongside, as it happens, the noble and learned Lord, Lord Hope, who is to speak after me, in the prosecution of serious criminal offences in the High Court of Justiciary in Scotland. But my appreciation for the police is based on a simple proposition. The police are the first line of defence of our community and community values. Of course, that defence has been most evident in the responsibilities that the police have had to ensure that the terms of the lockdown are properly observed.

We have heard, not least in the debate in the other place, that that responsibility is subject to the ever-present risk of life and limb. In particular, I draw attention to the eloquent discussion of that matter from my honourable friend the Member for North East Fife Wendy Chamberlain—happily now my successor—who, of course, served in the police herself and who comes from a family with a long tradition of police service.

I come back to where I began: just exactly why did it take so long? As the noble Lord, Lord McConnell, pointed out, money has been lost as a result. Was it a political difficulty or some problem of officialdom? As he pointed out, £1 million simply has not been available for the purpose for which it was intended. The Scottish Parliament is always asking for new powers. It would have a stronger case for doing so if it was able to show that such powers as it has been given are expeditiously operated.

Two other points occur to me. One is that, when asked for an estimate of how many applications might be made for a restitution order, what was said in the debate in the other place was that there will be somewhere between 250 and 500. There was no factual basis for that estimate. It has great significance when one comes to consider just how much might have been and will be achieved. At the same time it was said in the other place that it was expected that the average value of a restitution order would be £350. Your Lordships can do the arithmetic: at 250 a year it is £87,500, and at 500 it is £175,000.

I have two last questions that I think are important. What assessment has been made of the impact on the welfare of the individuals, or the families of individuals, against whom such an order might be made? I have in mind the particular difficulties that we all know about in universal credit. It would be helpful to have some understanding of what assessment of impact has been available.

My Lords, it is a pleasure to follow the noble Lord, Lord Campbell of Pittenweem, in expressing support for this order, but I am concerned by the statistics that the Minister mentioned at the outset of his speech. A disgraceful number of assaults against police officers have taken place during the present crisis. I express my admiration for the way our police forces have performed their quite difficult duties during this very difficult time, in weather that rather encouraged misbehaviour, I am afraid, in certain parts of the country.

At first sight, it seemed rather odd that it was thought necessary to resort to a UK SI to modify an Act of the Scottish Parliament, but those who prepared the Explanatory Memorandum have set out the position very well, as indeed the Minister did in his opening remarks. We are concerned here with a penalty that can be imposed by the courts in Scotland under the 2014 Act for an offence under another Scottish statute, the Police and Fire Reform (Scotland) Act 2012, for assaulting a police officer. To make this penalty more effective in the case of offenders with little means, it is necessary to amend a UK statute—the Criminal Justice Act 1991—which of course can be done only by an order made in this Parliament, under Section 104 of the Scotland Act 1998, as the Minister pointed out.

However, I would be grateful if the Minister could say a little more about how this system is likely to work in practice. The restitution order is an additional penalty for an offence under Section 90 of the 2012 Act—additional, that is, to a sentence of imprisonment or a fine. It seems rather unlikely that a sheriff would make a restitution order on its own, although the new Section 253A, introduced in the 2014 Act, would permit that, so we should have in mind an offender who is being asked to pay a fine, as well as having to satisfy a restitution order out of such money that he has at his disposal.

My Lords, I share the sentiments of previous speakers about the amazing work of the police throughout our nations during this very difficult time. Normally, I would not have much to say about Scottish matters, having few connections, but having heard about some of the innovations over the years in the Scottish justice system, particularly around restorative justice, I am attracted to this discussion. I broadly welcome this measure in principle. Unquestionably there should be penalties for mistreating the police, particularly with the examples we have been hearing about, such as people spitting on them. It is right to get justice—financially, if necessary—in a way that cannot easily be avoided.

However, I am surprised that this measure is being put forward. I echo previous speakers in asking what thought has been given to the impact for those on benefits who are fined in this way? It would be perverse for the financial stress caused by this measure to cause offenders to reoffend, whether against the police or other people. That does not make sense to me, even if it gives a political win by being seen to be taking harsh action against those who oppose the police.

As part of the broader measures to rehabilitate the offender, including achieving justice and finding funds to support police officers and their families, this can make sense. However, what can be done to ensure that the guidance that sheriffs and courts are given is applied wisely and judiciously to have the optimum impact and to achieve all the goals it could achieve without some of the adverse consequences that may arise? I am keen to know what guidance will be provided or whether it will ultimately be left to the final judgment of the sheriffs and the courts.

My Lords, I too thank the noble Viscount, Lord Younger, for his excellent introduction. I also express some sympathy for him: having just answered the PNQ on Northern Ireland, he is now dealing with Scotland, yet he has no direct responsibility for either of them, unlike the noble Lord, Lord Duncan, had when he was in his former position.

The Government should sort this as quickly as possible. I echo what was said by my noble friend Lady Smith in the PNQ: this situation should not be allowed to continue. It is a matter between the UK Government and the Scottish Government, and there ought to be more contact and regular meetings between Scottish Ministers and UK Ministers. The noble Lord, Lord McConnell, will recall that at the start of the century, when I was Minister of State, we used to meet regularly—weekly, and sometimes more often—with Scottish Ministers. We had a discussion about free personal care with the DWP and the Scottish Government that we are dealing with now. These are important matters, and we need Ministers in Scotland and Northern Ireland to deal with them.

Returning to the order, I agree that the police are in the front line. It is outrageous that since 10 May, there have been over 100 coronavirus attacks on police. It is not always the perfect picture in Scotland that some in the Scottish Government like to portray. Restitution orders are going to be useful, principally, I hope, as a deterrent rather than bringing the money in. However, I have a few questions for the Minister, which I hope he will be able to answer. I have given him notice of one or two of them.

First, this is going to be quite a complicated procedure, and very difficult between the Scottish Government and the DWP. Is there any estimate of the cost of administering this, and how it compares with the actual money that will be brought in by the scheme? Secondly, will there be some arrangement for monitoring the scheme on a case-by-case basis—not just a blanket monitoring to see how it is operating, but monitoring the impact, as the noble Lord, Lord Wei, said, on the families of offenders? That is a very important point. The knock-on effect on the families of offenders could be very great indeed, and, as the noble Lord said, it could lead to some reoffending. It needs to be monitored very carefully. There need to be safeguards in relation to the unintended consequences of what is being proposed. Can the Minister indicate what the arrangements might be for reviewing this?

My Lords, I too thank the Minister for his introduction to this SI.

During the coalition Government, when I was at the Ministry of Justice, I had a responsibility in relation to women offenders and women in prison. What I learned was chilling. We know that women are more likely to be poorer than men, and that women who come within the justice system, if they are parents, are more likely to be single parents. This is why prison is so devastating for them and for their families. When women go to prison, their children often go into care, and they often lose their housing and possessions. Therefore, I came to this proposal with that gender difference in the effect of penalties in mind.

I fully support the proposal that restitution should be part of a sentence, if judged to be appropriate. We certainly cannot tolerate assaults on police officers, or the other people prescribed here. I too pay tribute to the work that they have been carrying out in this pandemic. It is good to see the fund for victims, including caring for, treating and rehabilitating them, and it is good to hear that this will support the physical and mental well-being of victims. However, on reading the Explanatory Memorandum, I noted that

“an impact assessment has not been produced for this instrument as no, or no significant, additional impact on the private, voluntary or public sectors is foreseen.”

The phrase “no significant” impact is what I wish to probe; it was also mentioned by other noble Lords. I note that restitution may be required instead of, or in addition to, dealing with an offender in any other way. It is that “in addition to” which may be significant. I come back to the points that women tend to be poorer than men and have more childcare responsibilities. This order is about deducting from their benefits. This could be in addition to any other fine. Therefore, I want to know what assessment was made of this. Under equalities legislation, the differential effect of every policy is supposed to assessed with a gender lens. I recall, as Equalities Minister, needing to point out to the Treasury that it must do this. Internationally, we are required to do so by signing up globally to the sustainable development goals, and we urge all countries to look at the gender impact of their policies. Was that done in this case?

My Lords, I thank the noble Viscount, Lord Younger, for bringing this SI to us today and associate myself with the comments of my noble friend Lord Foulkes about the noble Viscount’s workload. He has no responsibility for Northern Ireland and Scotland, and that must be addressed.

I am grateful that this order is part of the Government’s ongoing commitment to devolution. The dreadful pandemic has thrown up more questions than answers as we seek to recover from its impact on our working and our personal lives. However, tensions have arisen from government information during the lockdown, as aspects of devolution, indeed the laws of the lands, have become mired in poor communication. Sadly, there has been an assumption by some in public life, the media and the wider public that the information disseminated from the UK Prime Minister’s office applies equally across the UK, taking little note of the devolution settlement that has been in operation since 1999 in our countries.

I am glad that officials in the UK Government and the Scottish Government have worked together on this provision and indeed others that are of value to the inhabitants of Scotland, and that it relates to the whole of the UK. It ensures that if people are in Wales or England, these measures apply. Under Scottish law, it is already a crime to assault a police officer, but this legislation allows for restitution orders to be brought into law and the court will be able to impose this new financial penalty. It is of course of significance that serving police officers who are victims of crime are now able to receive greater support for their needs, to support their physical and mental health.

We largely take it for granted that we work in a safe environment, but for serving police officers it can never be that simple. The threat of assault is ever present and over the past five years there has been a sustained increase in reported assaults on officers. Restitution orders are not just a financial penalty for those who assault police officers who are carrying out their daily work; they are about showing those officers that their work is greatly valued by society. We rely on the police every day, but never more so than in the difficult days placed on us by this pandemic.