Meeting of the Parliament 21 June 2023
I will speak to all the amendments in the group.
Amendment 67, from Pauline McNeill, seeks to remove the mandatory requirement for the court to provide an opportunity for justice social work to provide information relevant to the question of bail and, instead, make that discretionary. An identical amendment was lodged by Ms McNeill at stage 2 and was fully debated by the Criminal Justice Committee.
The purpose of section 1 is to ensure that justice social work is always given an opportunity to provide information to the court. Amendment 67 would completely cut across that policy, as it would be left to the court to decide.
As was discussed at stage 2, there have been suggestions that decisions on whether to admit an accused to bail could be delayed as a result of the changes proposed in section 1. That will not happen, however, as Ms McNeill acknowledged in her remarks. Section 1 does no more than require the court to give justice social work an opportunity to provide it with information that is relevant to the question of bail. It does not mean that justice social work has to provide information in every case, nor does it mean that the court cannot make the bail decision if information from justice social work is not provided.
If a person appears, for example, on a Monday, the bail decision must be made by the end of Tuesday—in other words, the next day. That is and will remain the legal timescale.
The court will continue to make bail decisions on the basis of the information that is put before it, whether or not justice social work has provided information. There is no risk that bail will be refused because the court is awaiting information from justice social work. The court cannot refuse bail because it is waiting for information from any party.
Amendment 67 would leave it to the discretion of the court whether to offer an opportunity to justice social work to provide information. There is a risk that that could mean that valuable information would not be provided in individual cases, as the court might not always be aware of whether criminal justice social work held relevant information, because it had not asked justice social work.
I ask Pauline McNeill not to press amendment 67. If she does, I ask members to vote against it.
The Scottish Government supports amendments 15, 16 and 21, from Maggie Chapman, which respond to some of the issues raised at stage 2 by the Scottish Liberal Democrats. As Ms Chapman has set out, under existing bail law, at any time when the question of bail is being considered, the court has a general power to seek further information that is relevant to the bail decision from the prosecutor or the accused’s legal representative. The bill seeks to extend that power to include justice social work.
Sitting alongside that general power, amendment 15 expressly enables the court to ask the prosecutor for additional information in relation to victim safety, to help inform the bail decision. That highlights to the court the importance of the victim safety aspect of the new bail test and that it is primarily the role of the prosecutor, who acts in the public interest, to provide the court with information about any perceived risks of harm that the accused poses to the complainer that would be relevant to the court’s decision on whether to grant the accused bail.
I am aware that, throughout scrutiny of the bill, ensuring that the court has the best information to inform its bail decision has been a key issue. Amendment 15 acknowledges the important position of the prosecutor in that regard and is a sensible and helpful provision that will aid the operation of the new bail test, including consideration of victim safety, which is at its heart. Amendments 16 and 21 are consequential amendments.
Katy Clark’s amendment 68 would require the Scottish ministers to report to Parliament on the operation of section 1 during its first year in force. The amendment is identical to the one that Ms Clark lodged at stage 2, which was fully debated by the Criminal Justice Committee.
I very much recognise that the enhanced role of justice social work through section 1 carries resource implications, as set out in the financial memorandum. It is important to remember, though, that the bill simply requires the court to give justice social work an opportunity to provide information that is relevant to the question of bail in each case before the court.
It does not place any duty on justice social work to provide such information. Ultimately, it will be for justice social work to identify the cases in which it can best help to inform the court’s decision making by providing additional information.
15:15Throughout the passage of the bill, I have made it clear that the Scottish Government will continue to work with justice agencies during implementation planning to review the resourcing requirements and the timescales for commencement.
Members will be well aware, as we all are, of the real challenges that exist in relation to budgets across Government and across the country, and that those are likely to continue. However, I remain close to the issue, and I contend that the ring fencing of criminal justice social work has certainly given it a stability notwithstanding those pressures.
Of course, the Parliament has the power to carry out post-legislative scrutiny of any act of Parliament. It may also choose to scrutinise particular provisions of an act. The Parliament also requires to pass the Government’s annual budget bill, and so elements of the justice budget, including that of justice social work, can be looked at through that process. Accordingly, the Parliament would be able to consider the impact of the bail reforms on justice social work through those scrutiny processes without having to add a further reporting requirement to the bill to allow for that.
I ask members to vote against amendment 68.
Amendment 19, in the name of Jamie Greene, would give the complainer the right to make representations to the court when it is determining whether to grant or refuse bail.
The subject of how the court is best informed about the potential risks to complainer safety is a key issue that was, quite rightly, discussed in some detail at stage 2. With the new bail test explicitly embedding public and complainer safety within its operation, it is clearly important that the court has appropriate information to assess that.
Amendment 15, which is being considered in this group, emphasises to the court the route by which information on complainer safety should be obtained: it is from the prosecutor. As was discussed at stage 2, I would have concerns about placing in the bill any requirement or expectation that a complainer should appear in front of the court. I know that that is not Mr Greene’s intention.
It is clearly important in many cases, such as those involving domestic abuse, that information on potential harm is made known to the court, but that should be done via the prosecutor, and amendment 15 helps to strengthen the law in that regard.