Seòmar agus comataidhean

Good morning, convener, and thank you. The draft International Organisations (Immunities and Privileges) (Scotland) Amendment Order 2023 confers various legal immunities and privileges on the International Criminal Police Organization, which is more commonly known as Interpol, and specified categories of people who are connected to Interpol so far as it is within the devolved competence of this Parliament. The United Kingdom Government has negotiated a privileges and immunities agreement with Interpol to provide it with the privileges and immunities that are necessary for it to function effectively in the UK and to enable Glasgow to host the 2024 Interpol general assembly, for which granting privileges and immunities is a prerequisite.

The agreement regulates the privileges and immunities that are afforded to Interpol, such as certain tax exemptions and immunity under certain conditions from legal process. The agreement obliges the United Kingdom to abide by the terms of the agreement. The order before the committee today fulfils those obligations in so far as they relate to devolved matters in Scotland. Equivalent provision in respect of reserved matters and devolved matters in the rest of the UK is being conferred by legislation at Westminster. However, to the extent that privileges and immunities relate to devolved matters in Scotland, conferral rightly falls to the Scottish Parliament. When respective parliamentary passage is complete, both orders will go before the Privy Council in July.

To assist the committee, I will say a little bit more about the nature of the privileges and immunities that are involved. The immunities cover things that are done or omitted to be done by members of Interpol only while exercising their official functions in connection with Interpol and the general assembly. There is an exception to the immunity in respect of road traffic accidents. All persons enjoying privileges and immunities are expected to respect the laws and regulations that are in force in the UK, and the secretary general of Interpol must co-operate at all times with the appropriate UK authorities to prevent any abuse of the privileges and immunities. The order also provides for the inviolability of any private residence of the secretary general, exemption and privileges in respect of personal baggage, and exemption or relief from all devolved and local taxes.

It is customary to grant such privileges and immunities to diplomatic missions and international organisations to enable them to function. The agreement is broadly in line with global practice and includes provisions to ensure that immunities and privileges do not impede the proper administration of justice. The privileges and immunities that are conferred by the draft order are granted primarily on the basis of strict functional need. They are no greater in extent than those that are required to enable Interpol and specified individuals connected with Interpol to function effectively. The immunity does not apply to a person who is a British citizen or any person who at the time of taking up his or her functions is a permanent resident of the United Kingdom.

Immunities and privileges are, therefore, limited in that they apply only to official functions and can be waived. The immunity is analogous to but more limited than the immunity that has been for generations conferred on diplomats working in foreign jurisdictions. As with diplomatic immunity, all individuals benefiting from privileges and immunities in Scotland are expected to respect Scots law, both criminal and civil.

The draft order implements the agreement that the UK has reached with Interpol in line with global practice. It enables Interpol to hold the general assembly in Glasgow and conduct its activities in the UK, while ensuring and upholding protections for the effective administration of justice. As a good global citizen, it is the responsibility of the Scottish Government to bring the order to the Parliament for consideration. I commend the order to the committee.

It is broadly similar.

I accept the point that we need to monitor all of this going forward, but bodies such as the drug deaths task force made recommendations, which were accepted by the Government, and it looked at a range of evidence on the impact on communities. I think that we are all agreed on the impact of release on a Friday. However, in a very practical sense, we need to avoid the displacement from a Friday to a Thursday, so that we are not just moving one set of problems to another day of the week. It is a way of spreading the load over four days.

Does Mr Findlay agree that there is a clear distinction between planning for someone’s release—there must be victim support input into the plans that are made—and the management of offenders and the delivery of services to manage offenders? No one wants to silence victims, and they have to be involved in the end-to-end justice journey, but we need to be clear that we are not expecting victims or victim support organisations to be involved in the management of offenders or the delivery of those management plans, because those things clearly rest with other agencies.

I certainly hope that what I have put on record today will be of some comfort. I assure Mr Greene and the victim support organisations that dialogue will absolutely continue between now and stage 3. There is a commitment to work inclusively with everyone to get all the detail right, and I hope that what I have put on record today will take us at least a bit further forward.

I understand why Ms Clark has lodged the amendments in this group, given her constituent’s experience.

Amendment 4 would require the Scottish ministers to review the impact of part 2 of the bill on the operation of multi-agency public protection arrangements within a year of royal assent and to publish a report on that review. I regret that, for a number of reasons, I cannot support it.

First, the timescales in the amendment are unrealistic. We will carefully consider with partners the implementation process for each section, if the Parliament passes the bill, which might mean that not all sections of the bill will have been enacted within a year of royal assent. Therefore, any review within that timescale may be limited, because it might have little or nothing by way of a period of operation to consider.

It is also relevant that the 2005 act already requires each MAPPA area to carry out an annual review of the arrangements for that area and to publish a report. The Scottish ministers can notify the MAPPA partners of information that they wish them to include in the report. The Scottish Government produces its own annual overview report of the arrangements. Those reports can comment on relevant public protection matters and could provide a mechanism for reviewing the relevant impacts of the bill if necessary.

The scope of amendment 4 is broad and covers all of part 2 of the bill. However, it is not clear that all sections of part 2 will directly impact on the operation of MAPPA or the management of individuals who are subject to MAPPA in the community. Such a review mechanism may, therefore, require areas that are unlikely to be relevant to the operation of MAPPA to be assessed.

MAPPA, as members might be aware, is not an entity in itself but a partnership made up of local authorities and regional health boards, as well as Police Scotland and the SPS. They come together in regional groupings. Amendment 4 would require the review to consider changes to national guidance that ensures

“a consistent approach across Scotland.”

Although consistency might be desirable in some areas of operation, MAPPA regions can, at present, determine how they operate at local level. The national guidance is already regularly revised to take account of new legislation as well as changes in policy and effective practice. That revision is also informed by the annual reviews. The latest national guidance was published in March last year.

Therefore, the reporting requirement that amendment 4 proposes is not workable or necessary and I ask Ms Clark not to press the amendment.

I note that amendment 5 links to amendments 1 and 3, which were also lodged by Katy Clark and have already been discussed in previous groups. It would place a requirement on the Scottish ministers to report on the operation of the whole act, with a particular focus on the two elements that it mentions, within a year of royal assent. That timescale may be unworkable, given that different sections of the act may come into force at different times.

It is also not clear what

“the operation of this Act”

would cover in practice. As the member is aware, the bill mainly amends other legislation, so it is not clear that amendment 5 would result in a meaningful report.

I agree that the resourcing requirements of the bill require careful and on-going consideration with partners. That will continue into the bill implementation process and future budget discussions. I am not clear that amendment 5 would add to that process. However, as I have said, I am minded to lodge a stage 3 amendment that will encompass the various asks for reviews into different sections of the bill to provide a more coherent picture. In the light of that, I ask Ms Clark not to move amendment 5.

Amendment 6, in the name of Katy Clark, would add proposed new section 203B to the Criminal Procedure (Scotland) Act 1995 to enable the court, when passing sentence on a person who was convicted of an offence, to take account of the person’s compliance with any bail conditions that had been imposed on them while awaiting trial or sentence, including compliance with any electronic monitoring and curfew conditions that had been imposed. I understand the intention behind the amendment, but I hope that I can explain why it is not necessary.

In determining the appropriate sentence to impose on an offender, the court can already take account of all the relevant facts and circumstances of the case, as Ms Clark has acknowledged. In any specific case, the court can ask the prosecutor, the defence or criminal justice social worker how well the accused has abided by the conditions of any bail order to inform the sentencing decision. Specific provision is not required to enable the court to do that.

If the proposed new express power is intended to allow the court to consider both compliance and non-compliance with bail, it is important to remember that breach of a bail condition is in itself a criminal offence that carries a maximum sentence of 12 months’ imprisonment.

Where an offender has been convicted of and sentenced for breaching their bail conditions—or, indeed, any offence—the prosecutor may at point of conviction, and prior to sentencing, place before the court a schedule of the offender’s previous convictions for the purpose of enabling the court to determine an appropriate sentence. That is in accordance with existing powers under the Criminal Procedure (Scotland) Act 1995.

As such, no specific provision is required to enable the court to take account of the offender’s compliance or otherwise with bail conditions, including those relating to curfew or electronic monitoring, when deciding on an appropriate sentence for the offender.

Ms Clark said in her introductory remarks that there might be, in her view, some benefit to codifying arrangements. My concern is that her amendment has no practical effect and would insert provisions in the wrong part of the 1995 act. I therefore ask her not to press amendment 6, but, if she does, I ask members to vote against it.

This group of amendments focuses on a critical area of the bill: planning for release from custody.

Section 9 is intended to require earlier engagement in a prisoner’s release planning by the universal services that they will need on release to reduce their risk of reoffending. That is underpinned by a commitment to victim safety. Although I support the intention behind some of the amendments in the group, and I am willing to work with members to see what can be done and brought forward at stage 3, I cannot support the specific amendments as drafted for the reasons that I am about to lay out.

First, amendments 40 and 99 seek to require Scottish ministers to “publish guidance and standards” on release planning in Scotland. I assume that that would be in support of the implementation of section 9, but the amendments are not specific in that respect.

The amendments also require Scottish ministers to carry out public consultation on such guidance and standards. I agree that it will be important for a consistent approach to be taken to the implementation of section 9 across the prison estate and with all the named bodies, so I am minded to consider lodging an amendment at stage 3 to include a requirement for Scottish ministers to develop guidance in support of that. I also expect such guidance to include detail on how best to consider victim safety. However, I am not persuaded that separate standards would be needed, as there would be a risk of duplication with the proposed standards for throughcare that are provided for in section 10.

I am also not convinced of the need for public consultation on what would be operational guidance for practitioners. I agree that we will need to consult relevant stakeholders in developing the guidance, and we will consider how to reflect that in a stage 3 amendment. I therefore ask members not to move amendments 40 and 99.

Amendment 39, in the name of Katy Clark, seeks to place a duty on the public bodies that are named in proposed new section 34A(2) of the 2016 act, as inserted by section 9, to have regard to the role that victims of crime and VSOs can play in the development, management and delivery of a prisoner’s release plan. That plan will prepare a person for release from custody, whether from remand or sentence, and will facilitate their reintegration and their access to universal services.

I understand that the views of victims, and the organisations that support them, are crucial in informing release decisions. Victim safety is a critical consideration in release planning. Victims have the right to receive certain information about the release of the prisoner in their case—indeed, the bill extends that to victim support organisations—and to make representations on licence conditions. As the committee is aware, that is provided for through the victim notification scheme, which has just been subject to an independent review.

That said, I am not clear what appropriate role victims and VSOs could play in relation to the development, management and delivery of a prisoner’s release plan. That could place significant pressure on a victim and, in fact, be retraumatising. I would also have concerns about what role a victim or a VSO could play in developing a release plan for a prisoner on remand, because the prisoner has not been convicted of an offence.

I hope that Mr Findlay will be reassured by the fact that my officials and I have engaged with, and will continue to engage extensively with, victim support organisations. We are at stage 2. I have laid out why the amendments that I lodged are necessary and I am about to give a view on the amendments that other members lodged.

I turn to amendments 45 to 48, which Katy Clark lodged. Like Government amendments 21, 24 and 105, amendments 45 to 47 are intended to require victim consent before a VSO can request information on a victim’s behalf. Amendment 48 is intended to do the same thing when a person has received a sentence of under 18 months.

However, rather than amending the bill to ensure that consent is sought, Katy Clark’s amendments would remove the relevant subsections that allow VSOs to seek information proactively. I appreciate the intention behind the amendments, but they would remove provision for VSOs to originate a request for information, and retaining that ability to request information is important.

While a VSO works with a victim, the victim may realise that they want the VSO to be provided with information to help them to plan for release. If the victim did not register with the VNS at an early stage, it could be retraumatising or disincentivising for them to be required to return to the SPS to make a request. Allowing VSOs to make requests and receive the information on a victim’s behalf can help to remove such issues.

Scottish Government amendments 21, 24 and 105 achieve the intended result of ensuring that victim consent is secured before information is requested, while still allowing the VSO to proactively request information, if that is necessary. For that reason, I ask Katy Clark to withdraw amendment 45 and not to move amendments 46 to 48.

Amendments 102 to 104, lodged by Russell Findlay, aim to achieve the same results as those lodged by Katy Clark and me on securing victim consent. Mr Findlay’s amendments would still allow victim support organisations to proactively request information, but they would have to satisfy the Scottish ministers that consent had been secured and that they would use the information to support the victim.

The bill as introduced included the latter safeguard because the bill did not require consent, but we consider that having both safeguards could lead to confusion and delay in providing information to VSOs.

A victim is not required to satisfy the SPS of the ways in which they intend to use the information that they are entitled to, and we do not think that VSOs should be required to satisfy an additional requirement when a request stems from the victim and is made with the victim’s consent. My amendments will avoid that potential confusion and will better meet the Government’s policy intent. I therefore ask Russell Findlay not to move amendments 102 to 104.

Section 10 requires the Scottish ministers to establish throughcare standards for remand and sentenced prisoners. I welcome the committee’s support for those provisions.

I recognise that, in order for the standards to be as effective as possible, they need to be informed by a range of views. That is why section 10 includes a list of bodies that the Scottish ministers must consult when preparing, reviewing and revising the standards. The amendments that I have lodged seek to extend that list.

Amendment 14 adds the Risk Management Authority in recognition of the valuable insight that it will have in ensuring that the standards sufficiently manage risk and are informed by best practice. Amendment 15 adds the Care Inspectorate, reflecting its role in the scrutiny and assurance of community justice and justice social work.

Amendment 17 requires there to be consultation with groups that focus on providing support to children, young people and families who are impacted by imprisonment, which will allow the voice of children and families to shape the standards and their specific needs to be considered. Amendment 16 is a technical amendment to allow the list to be expanded.

Amendments 18 to 20 expand the list of statutory consultees to include victim support organisations, allowing the standards to be reflective of victims’ needs and ensuring that they continue to centre on victim safety. I have lodged the amendments in direct response to calls made to the committee, including by victim support organisations.

Amendments 18 and 19 define victim support organisations in line with section 11 of the bill, and amendment 20 allows the Scottish ministers to amend part of the definition, subject to the affirmative procedure, again in line with section 11. I ask the committee to support those Government amendments.

I turn to Katy Clark’s amendments. Amendment 43 would require the Scottish ministers to consult victims of crime and victim support organisations on the preparation, review and revision of the standards. I agree that consultation with VSOs on the standards is critical, which is why I lodged amendments 18 to 20.

However, I cannot support Katy Clark’s amendment 43, for a couple of reasons. First, the definition of victim support organisations that is provided in the amendment is not consistent with the definition that is used elsewhere in the bill. The Government’s definition of victim support services goes further and encompasses organisations that provide services that are intended to benefit the health and wellbeing of victims and those that provide support for safety planning and making representations regarding prisoner release. My amendments provide the ability for ministers to amend the definition of victim support services, but amendment 43 does not do that.

Secondly, amendment 43 would require the Scottish ministers to directly consult victims on the development of the standards. I agree that it is critical that the standards are informed by the experiences of victims of crime, but it is also important that victims are consulted in a trauma-informed and supported way. My view is that that is best done via victim support organisations.

For those reasons, I cannot support amendment 43. However, I argue that my amendments 18 to 20 will achieve the same aim. I ask Katy Clark not to move amendment 43.

It appears that amendment 42 is intended to require the Scottish ministers to carry out a public consultation on the throughcare standards. I support the principle of the amendment, but, as drafted, I do not believe that it will deliver its intended purpose.

Proposed new section 34B(4) of the 2016 act already contains a duty to carry out a public consultation when preparing, reviewing and revising the standards. The throughcare standards will undergo extensive consultation, and during that period the Scottish ministers must consult a wide range of people, bodies and organisations.

In addition, the Scottish ministers may consult anyone else they consider appropriate, so Ms Clark’s amendment would have little or no effect on the current requirement in the bill to consult when the standards are prepared, reviewed and revised under section 34B(4) of the 2016 act.

However, I recognise that there is wider public interest in this area and that the Government should be open to hearing the views of communities that are impacted by throughcare. Therefore, I commit to lodging an amendment at stage 3 that would require the Scottish ministers to undertake a formal public consultation on the draft standards following the consultation and development with the listed partners. I ask Ms Clark not to press amendment 42.

Amendment 44 would require ministers to take steps to ensure that individuals who are remanded in custody can receive throughcare support and access to activities and opportunities from the start of their period in custody. I agree that it is important that remand prisoners have access to support on release. That is why both the pre-release planning duty and the throughcare standards that are provided for in the bill also cover remand prisoners.

However, I am not clear what practical effect amendment 44 would have. Remand prisoners can already access throughcare support from their local authority on a voluntary basis under the Criminal Justice (Scotland) Act 2003. The third sector throughcare services already offer support to women and young people released from remand. I recognise that that does not include men released from remand. That is something that we are considering. That would have resource implications, but it would not require legislation.

If the intention behind amendment 44 is to go further by mandating that every remand prisoner engage in throughcare support, there would be legal issues with that. It is fundamental that engagement with throughcare support is voluntary. Unless someone has been sentenced and that sentence includes supervision requirements, they cannot be forced to engage with any form of follow-on support after they are released from custody.

Prison rules do not exclude remand prisoners from work or purposeful activity, and the Prison Service will, where possible, offer access to work and educational opportunities to those on remand. Therefore, I would argue that amendment 44 would not add to current practice, so I ask Ms Clark not to move it.