Coronavirus (Recovery and Reform) (Scotland) Act 2022 (Extension and Expiry of Temporary Justice Measures) Regulations 2023 [Draft]
Our next four agenda items all relate to our consideration of two affirmative instruments, namely the Coronavirus (Recovery and Reform) (Scotland) Act 2022 (Extension and Expiry of Temporary Justice Measures) Regulations 2023, and the International Organisations (Immunities and Privileges) (Scotland) Amendment (No 2) Order 2023.
We will start with the extension and expiry of temporary justice measures and I refer members to paper 3 and particularly to table 1 on page 12, which contains a helpful summary of what is proposed. I also refer members to paper 4, which contains a letter that we received from the cabinet secretary earlier this week that sets out plans for a consultation on the permanency of certain criminal justice measures from the Coronavirus (Recovery and Reform) (Scotland) Act 2022.
I am pleased to welcome back to the meeting the Cabinet Secretary for Justice and Home Affairs, Angela Constance, and her officials. Susan Black is senior policy officer in the civil law and legal system division of the Scottish Government; Emma Thomson is from the Scottish Government legal directorate; Heather Tully is from the justice reform unit of the Scottish Government; Patrick Down is from the criminal law practice and licensing unit of the Scottish Government; and Nicola Guild is from the Scottish Government legal directorate. I invite the cabinet secretary to speak to the instrument.
Thank you very much, convener.
As the committee knows, the Coronavirus (Recovery and Reform) (Scotland) Act 2022 includes a range of temporary justice measures that are due to expire at the end of this month. The measures were introduced to make sure that our justice system had the tools that were needed to respond to the pandemic’s impact. Justice agencies have made significant progress towards recovery and the need for some of these measures has reduced.
Therefore, the regulations that are before the committee this morning will expire the measures that I believe are no longer necessary or proportionate. That includes four of the time-limit extension provisions that were put in place at the start of the pandemic.
The regulations will modify the expiry date in section 52(1) of the 2022 act so that the remaining provisions, which I believe are still needed, will stay in force until 30 November 2024. To inform decisions on which measures to extend, we reviewed the operation of the provisions and consulted stakeholders, and we engaged with justice agencies to understand the effect that each provision is having and the likely impact if it were not extended.
We also sought views from the legal profession, the judiciary, victims organisations and third sector organisations. The findings of our review and consultation are set out in the statement of reasons that has been laid alongside the regulations.
I will briefly highlight three key reasons that mean that we need to retain the provisions that the regulations will extend. First, we are still seeing the impact of the pandemic on criminal court backlogs, although substantial progress has been made. The backlog has fallen by about 15,700 cases since January 2022.
However, the committee will know that the modelling of the Scottish Courts and Tribunals Service predicts that solemn-proceedings backlogs will remain above pre-pandemic levels until 2026. The temporary measures that we wish to extend have an important role to play in ensuring that court resources are used efficiently. Without them, the timescale would be longer and there would also be a serious risk that some cases could not proceed at all.
The regulations are particularly important for extension of the statutory time limits for certain criminal proceedings. The regulations seek to retain three of the seven extended time limits. Those extended time limits will increase the courts’ capacity to hear trials rather than procedural matters, which helps with throughput of cases and protects victims’ access to justice.
As the statement of reasons explains, without the extended time limits for the prosecution of certain summary-only offences, many prosecutions for drink-driving and drug-driving offences could be abandoned because those time limits cannot be extended case by case.
We all want a return to pre-pandemic time limits as soon as possible, but none of us wants to jeopardise the throughput of trials or to put prosecutions at risk. It is clear to me that the three remaining extended time limits need to be continued at this stage, although we will, of course, keep them under review.
The second key consideration is protection of health. The Bail and Release from Custody (Scotland) Act 2023, which was passed by the Parliament in June, includes a permanent power allowing for the early release of some prisoners in certain emergency situations. However, that power is not yet in force. The temporary provisions on emergency early release of prisoners therefore remain an important safeguard, in response to a threat from Covid, in making sure that we can act to protect the lives of those living and working in prisons. Although, of course, I hope that the likelihood of such a threat arising remains low, the harm that could be caused by not having the measures available could be severe.
Finally, our review highlighted that there is support for making some of the temporary measures permanent. That is beyond the scope of the regulations, but this week we launched a public consultation that proposes making permanent the temporary measures that I believe can deliver significant longer-term benefits and help to make our justice system more resilient, efficient and effective. The regulations are binary: we can either extend or expire provisions but we cannot modify them. The consultation offers us an opportunity to hear views on how we might adapt and improve provisions so that they deliver even better outcomes and experiences for the people who use them.
In the meantime, I believe that the package of measures that will be extended by the regulations is critical to helping to support our justice system’s continued recovery and resilience in the coming year.
I am happy to answer any questions.
Thank you very much for that helpful statement. I will bring in members who want to ask questions.
12:15
This is a quick question on part 3, which is about failure to appear before a court following police liberation. It enables the courts to modify the date on which a person is required to attend court on an undertaking, if they fail to appear at court for a reason attributable to coronavirus. I am assuming that that is if they are unwell with the virus. The proposal is that that will expire on 29 November. What was the thinking behind that? I know that coronavirus is still among us.
That measure is expired by the regulations because it is no longer proportionate or required because of the progress that has been made overall in the functioning of our justice system. That measure will expire on 29 November. We have consulted carefully on that, in particular with all our justice partners, and there was support for allowing that part of the coronavirus legislation to expire.
I want to make sure that I have understood what we are being asked to do. The Government set out its position in the debate on the extension of time limits due to coronavirus. I think that you also said that there might be a requirement to review the situation in 2026. Does that mean that you have to come to the committee with an SSI each time you want to extend by a year? I am trying to understand the procedure.
The Government can keep the three remaining time limits under review, and we propose to continue only three out of the seven original time limits. They can be extended only year by year, so they can be extended until next year and thereafter they can be the subject of only one further extension. Any permanent changes to those time limits would require primary legislation; we do not have plans to introduce primary legislation on time limits. We want to get back to the pre-pandemic normal.
Thank you. I understand. You were not cabinet secretary at the time, but in the chamber I was particularly exercised, as I have been for some time, about the extension of time limits. The first point to make is that for some reason the Scottish Courts and Tribunals Service was, before coronavirus, outwith the time limits of the Criminal Procedure (Scotland) Act 1995 by several months. We never got to the bottom of why that was allowed to happen in the first place. That is why I have severe reservations about allowing further extensions, albeit that I accept that progress has been made.
There is one particular debate that I want to highlight and ask you about. I can at least understand where the Government is coming from in relation to solemn proceedings and extending the time limits on first appearance, the preliminary trial and the trial itself. I have never had an explanation about what happens on indictment. The Crown previously had 80 days to prepare a case; under the regulations it will have 320. Why on earth is that? I need to press the matter. If you have not done this, will you do it? The Crown should be pressed to the nth degree on why it needs 320 days to prepare a case. Compared to other justice services, it has had better settlements over the years on pay, although I know that there is still a significant shortfall. How on earth can it justify asking for the extensions? I am at a loss to understand the preparation of the detail of an accusation in court following indictment. I am very suspicious as to why there is the extension.
The Crown has always complained that 80 days is too tight, but we have always said, as a country, that we are proud of the tight time limits. You might remember the debates that we have had through the years. I need to press you on why the Crown needs an extension to 260 days, until 2026, to prepare cases?
I will answer what I think is within my remit. First and foremost, I want, at the earliest opportunity, for us not to have coronavirus time-limit regulations in place. I want them for no longer than they are needed. I want to get back to our original legislation and the standards that are set out in it. This goes back to my experience from the prison system—although that was not yesterday.
I am aware that time limits can always be altered case by case. I do not have statistics to hand, but such alteration is far from uncommon. One of the reasons why I want us to continue with the three time limits is that I want to avoid misuse of precious court resources that should be focused on the backlog and on getting through trials, and I want not to clog up the system with procedural hearings.
On your reflection on increasing investment in the Crown Office, I think that it is a matter of record that in the past five years its budget went up by 50 to 75 per cent—notwithstanding that demands on its workload have most certainly increased, for reasons that were outlined in an earlier evidence session. To be helpful, the committee might wish me to ask the Lord Advocate to reply to Ms McNeill or to write to the committee. I have endeavoured to answer your question as best I can, from my position.
I understand that you cannot answer that question. I suppose that I would like to think that the Government is pressing the Crown for an answer. You are coming to the committee asking us to endorse the extension, but I do not think there is any justification for the Crown asking for it. I am less sympathetic to the extension to that time limit.
Can I ask you about the letter, which I have only just seen? I understand that you are consulting on making permanent measures that would include electronic signing of documents, virtual attendance at criminal courts and national jurisdiction for callings from custody—there is a list of things that you are asking to be made permanent. We will not be able to cover this today, but can I highlight a few areas of concern? Have you discussed national jurisdiction with the legal profession, for example? That must have huge implications for where people are tried and where the lawyers have to be.
Yes. I read a very helpful quote from a High Court judge, who said that the advantage of having national jurisdiction for callings from custody is that, where there are a number of warrants and indictments from various courts across the country, they can be heard in one place. I am also an advocate for, where possible, not bussing prisoners around the country. I do not think that that is efficient or effective.
If you get this power and there is national jurisdiction, that is exactly what will happen. Cases will just be tried in courts wherever they can be tried, I presume.
It will mean that someone can be tried in any court, which means that it could be done in a more local court, as opposed to transporting somebody from a prison at one end of the country to a court at the other end. My view is that that is just common sense. Nonetheless, it is a matter for consultation and people will have the opportunity to respond. The Government will have to reflect on the consultation and then there will have to be the normal legislative process. I hope that I can give some reassurance on that process.
I have a point of clarification about virtual attendance at criminal courts. I have expressed my concern about what I have seen so far. The quality is not good enough to justify that being a replacement for physical attendance. Does this apply to custody courts? My reason for asking is that I thought that the Government had supported my amendment on not having virtual appearances at custody courts. You do not have to answer that today; it is just that I am confused by this.
I heard you raise that in earlier committee sessions. I am happy to write to you offline, but my understanding is that you lodged amendments at stage 2 and stage 3 but then did not move them. That related to an exchange that you had with Keith Brown, but I am happy to supply the information that I have been privy to on that.
I do not think that that is accurate. Just for completeness of the record, there was one amendment that was accepted by the Government and I understood that that was because of the experience of custody courts going on until 10 o’clock at night—in Glasgow anyway—at huge cost to the public purse, because the quality of the connection was so bad. I saw for myself the mistakes that were being made and, for that reason, I thought that at least there was a ban on virtual appearances at custody courts. Anyway, I would be grateful if I could get some clarification on that. For that reason, I have to raise my concerns about the continuation of virtual appearances.
Perhaps for clarity on the regulations, for most criminal business the default position is that people attend hearings physically, but the provisions give the Lord Justice General a power to issue determinations to change the default to virtual attendance for certain types of case or in certain circumstances. I suppose that virtual appearance is not new. Obviously, there have been developments, extensions of scope and further use of the existing legislative opportunities or the existing powers of the Lord Justice General in relation to the pandemic. The consultation will be on electronic signing and the sending of electronic documents, virtual attendance at the criminal court, national jurisdiction for callings from custody and the maximum level of fiscal fines. That is what the consultation relates to.
Katy Clark, I am not sure whether you want to ask about the consultation letter. I want to keep our questions focused on the motion and I am very happy for us to write to the cabinet secretary with any questions on the consultation letter. I am quite keen to pull things back.
My question is on both. It is to do with the language that is used.
If you can ask questions about the motion, that would be helpful.
It is to do with national jurisdiction for callings from custody. The cabinet secretary made specific mention of trials. To be absolutely clear, you are not talking just about the initial appearance from custody and this relates to all aspects of the criminal process. Pauline McNeill has already referred to agents, so presumably that would mean that witnesses would also have to go to a different part of the country to give evidence if this relates to all aspects of the criminal process. Can we have clarification of what “calling” means?
That is a good point. I will ask officials to answer that.
The provisions in the regulations are about callings from custody. They are specific to custody cases and those first callings rather than being something that is available for trials generally.
12:30
It is not for every diet but is just for the initial appearance from custody. Thank you.
I have a couple of questions about part 2 and fiscal fines. Fiscal fines are issued by the Crown Office in response to certain offences. The threshold has been raised from £300 to £500. The regulations also extend their use to what is described as a wider range of crimes. Can you tell crime victims exactly what crimes this now encompasses?
I appreciate that, for ideological reasons, some people may be opposed to fiscal fines as an alternative to prosecution and, of course, all prosecution matters are not for me; they are for the independent Crown Office, for good reason, as we should not have politicians presiding over matters of prosecution. The regulations are not so much about the fundamental existence of fiscal fines but about increasing the scope of the fine from £300 to £500. It could potentially—again, this is a matter for independent prosecutors—reduce the number of cases going to the justice of the peace court if the prosecutor decides to offer a fine.
The question was about what crimes are encompassed. What has the use of fiscal fines been extended to?
Fiscal fines have existed for many decades for less serious crimes and, as I have indicated, they are likely to be crimes that could perhaps be dealt with by the justice of the peace court. There are limits on the type and the nature of offences that would be subject to fiscal fines. They are not for any offence, but maybe officials can give you some further reassurance.
I believe that the COPFS has previously written to the committee setting out that it is not possible to set out a definitive list of offences that fiscal fines could be used for. However, legally there are no offences that can now receive a fiscal fine that could not also have received a fiscal fine before the Coronavirus (Scotland) Act 2020 introduced this new higher maximum. The measures in the regulations do not change the offences that can attract a fiscal fine.
That seems slightly at odds with the information that we have in the documents, which says that fiscal fines are now being applied to a wider range of offences, but I will move on, because it is clear that people are not being told what offences they will be applied to.
Perhaps you could write to the Lord Advocate.
Perhaps. In response to the point that the cabinet secretary made about people’s ideological opposition, I do not think that crime victims are ideologically opposed to such fines. They want to see justice being done and they want transparency. One of the concerns that many of them express is that, with these direct measures, little or no explanation is given to them as victims. You also make the point that the Crown Office rightly deals with prosecutorial matters, but here we are as parliamentarians discussing what those should be. It is not a question of it being entirely up to the Crown Office.
Going back to the point about the extension of the use of fiscal fines and their increase in value from £300 to £500, is there not an argument to be made that, if the Government wants this to be part of the legislative framework for the criminal justice system, it should be brought forward as stand-alone legislation rather than brought in by stealth using the Covid pandemic legislation?
Fiscal fines have existed since the 1990s. These regulations, as we have heard from officials, are continuing the increase in the fines from £300 to £500. On the point about stand-alone legislation, the letter that I sent to the committee earlier this week already advises that the measures in the coronavirus regulations that we believe would improve the efficiency and resilience of the justice sector will be a matter of public consultation. There will be a public consultation on our proposition to make some of those measures permanent. Depending on the outcome of that public consultation, legislation will be required.
But that is a public consultation on details that we do not know. We do not know what the criteria are for the increased scope of fiscal fines.
To be clear, convener, while I am aware that Mr Findlay and not victims may have ideological objections to fiscal fines as an alternative to prosecution—
I have to pick you up on that, I am sorry—I do not have ideological opposition to fiscal fines.
I am pleased to hear that.
I think that there should be a lot more transparency around their use and I do not see why there is opposition to that.
Bear in mind that the Crown Office writes to the committee regularly and I, too, have written to Mr Findlay on this matter, again supplying a great deal of information, notwithstanding the importance of the separation of powers to the very fabric of justice and democracy.
Thank you very much.
I invite the cabinet secretary to move motion S6M-10547.
Motion moved,
That the Criminal Justice Committee recommends that the Coronavirus (Recovery and Reform) (Scotland) Act 2022 (Extension and Expiry of Temporary Justice Measures) Regulations 2023 be approved.—[Angela Constance]
The question is, that motion S6M-10547, in the name of Angela Constance, be agreed. Are we agreed?
Members: No.
There will be a division.
For
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Nicoll, Audrey (Aberdeen South and North Kincardine) (SNP)
Swinney, John (Perthshire North) (SNP)
Against
Clark, Katy (West Scotland) (Lab)
Dowey, Sharon (South Scotland) (Con)
Findlay, Russell (West Scotland) (Con)
McNeill, Pauline (Glasgow) (Lab)
The result of the division is: For 4, Against 4, Abstentions 0.
I will use my casting vote and agree to the motion.
Motion agreed to.
Can I have members’ approval for the clerks and me to publish a short factual report on both our SSIs today?
Members indicated agreement.
International Organisations (Immunities and Privileges) (Scotland) Amendment (No 2) Order 2023 [Draft]
I invite the cabinet secretary to speak to the second instrument.
The draft order is an order in council made by His Majesty under powers in the International Organisations Act 1968. The nature of the reserved-devolved divide means that, where privileges and immunities relate to devolved matters in Scotland, the function of advising His Majesty on the order is devolved. A parallel order has been made and is in force in the rest of the United Kingdom and for non-devolved Scots law. This order confers no new privileges and immunities but simply expands the range of meetings where they apply in line with the 1959 Agreement on the Privileges and Immunities of the International Atomic Energy Agency.
To assist the committee, I will say a little more about the background to this order. In the 1959 agreement, the UK agreed to provide privileges and immunities to representatives of agency members attending
“any international conference, symposium, seminar or panel”
convened by the agency. That language was not entirely reflected in the subsequent International Atomic Energy Agency (Immunities and Privileges) Order 1974, which implemented the agreement obligations into UK domestic law. The discrepancy recently came to light during the development of the host country agreement requirement to hold the 2023 IAEA fusion for energy conference in London, as it is at odds with the agreement obligation. It was agreed with the Foreign, Commonwealth and Development Office that that should be remedied by each Administration to the extent that it has power to do so.
Separately, this order makes consequential amendments resulting from the parallel UK order. That is to restate the provisions of the 1974 order that are within the legislative competence of the Scottish Parliament and is an opportunity to clarify the definition of representatives of members so that it more fully reflects the wording of the 1959 agreement. Passing this order will correct an historical error and ensure that we are able to fully meet our international obligations.
As a good global citizen, it is the responsibility of the Scottish Government to bring the order to the Parliament for consideration and I commend it to the committee.
Do members have any questions or comments? Nothing at all? Thank you. In that case, I invite the cabinet secretary to move motion S6M-10537.
Motion moved,
That the Criminal Justice Committee recommends that the International Organisations (Immunities and Privileges) (Scotland) Amendment (No. 2) Order 2023 be approved.—[Angela Constance]
Motion agreed to.
Thank you very much, cabinet secretary and officials, for your time this morning.
That concludes the public part of our meeting. Next week, we will see the cabinet secretary again to take evidence on parts 1 to 3 of the Victims, Witnesses, and Justice Reform (Scotland) Bill and we will be looking also at the HMICS report on policing and mental health in Scotland. We now move into private session.
12:42 Meeting continued in private until 12:53.Previous
Pre-budget Scrutiny 2024-25