Meeting of the Parliament 16 March 2023
In the nine months since the bill was introduced to Parliament, the Criminal Justice Committee has consumed many thousands of words, written and spoken. There has been lengthy and often conflicting testimony from 26 witnesses, and there have been 32 published responses and 13 letters. Ten days ago, we published our 50-page stage 1 report. I thank the clerks, who do so much hard graft, which is often unseen.
Despite that vast volume of material, the committee has often struggled to get specific information that we needed and straight answers to our questions. Like others, I have found that incredibly frustrating. As MSPs, we are required to analyse, assess and stress test legislation, but we are restricted in getting basic facts.
In our stage 1 report, every single committee member—including SNP members—stated:
“we have faced challenges in obtaining accurate and clear information on the reasons for remand and the characteristics of Scotland’s remand population.”
What kind of way is that to legislate?
We have been here before with flawed and rushed legislation. However, putting aside my wider concerns about how the Parliament functions, I have serious worries about the bill, which are far too many to cover in my few minutes today.
One concern is about sentencing in relation to time spent on bail while subject to electronic monitoring. The bill says that two days of electronically monitored bail will be the equivalent of one day already served. That means that judges would be expected to deduct that bail time from whatever sentence they impose. That is quite different from the existing practice of judges in taking into account time served on remand when sentencing. Once the law says that the time in which a person sits in the comfort of their own home with an electronic tag on their ankle is the same as jail time, what might happen? I believe that every criminal in Scotland will find reasons to delay their trial, knowing that every two days in the house counts for one day off any eventual jail time. Churn already blights our courts—that change may fuel it. It risks worsening the chronic court backlogs. I believe that it will also further betray victims and erode public trust in what is often smoke-and-mirrors sentencing and what that actually means.
Many other valid points have already been articulated by my colleagues Jeremy Balfour and Donald Cameron. Jamie Greene spoke about the concerns of victims groups and the judiciary. Those who represent front-line police officers say that the bill would be
“unwelcomed by communities plagued by repeat offenders”.
I will address a contribution from a key supporter of the bill. The penal reform charity the Howard League Scotland has said that the bill is
“an opportunity to challenge the entrenched practices of some members of the judiciary who appear to accept the Crown’s opposition to bail applications too readily”.
It added:
“We would suggest that significant cultural change—particularly amongst some parts of the Crown and judiciary—will be required for these changes to take effect”.
I asked the Howard League Scotland representative to expand on that. It turned out that he was, in fact, as a part-time sheriff, a member of Scotland’s judiciary. However, to be frank, I am still no clearer about what was meant. The suggestion seems to be that m’learned friends are some sort of out-of-touch, regressive dinosaurs, even if those who believe that are unwilling or unable to offer any evidence to back it up.
The same witness also used a phrase that I think goes to the nub of what this bill is really about: “risk appetite”. Radical changes to bail and a reduction in imprisonment will come at a likely cost to communities, which is more crime, more victims and more misery. Do the people of Scotland share that risk appetite? I do not think that they do and I do not think that they should.
That brings me on to the issue of cost, which was described by one witness as
“an elephant in the room”.—[Official Report, Criminal Justice Committee, 14 December 2022; c 6.]
Stretched criminal justice social workers will be burdened with even more work. The bill’s financial memorandum can be summarised as saying, in effect, “Don’t worry, it won’t cost much,” yet witnesses warn that the Government has significantly underestimated the costs. COSLA calls for a “detailed financial assessment” of the impact on councils before the bill is enacted. Daniel Johnson made those points about cost very well.
We do not even know whether criminal justice social work will form part of the proposed new national care service. Kevin Stewart admitted to the committee that he is spending £80,000 of taxpayers’ money on a private contractor to answer that question and, depending on who the SNP members decide will be the next First Minister, there might not even be an NCS.
There are many more concerns, which are for another day. However, to conclude, we do not have the information that we need; we do not know the intended purpose of the bill; we do not know what problems it seems to be trying to fix; and, whatever those problems are, we do not know how they can be quantified or fixed. Some people say that the bill is game changing; others say that it will change nothing. Some say that it will help to ease the court backlog; some say that it will make it even worse. We do not know how much it might end up costing taxpayers. This Government likes to talk about what it calls “smart justice” but there is absolutely nothing smart about this half-baked approach to law-making. Social experimentation, flying blind, tinkering—call it what you want—it speaks to a Government that is out of ideas and out of touch.
I note that Labour will abstain today, despite one of its two committee members opposing the general principles of the bill. Our party cannot support the bill but we commit to working constructively to improve it.