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Draft Victims and Witnesses (Scotland) Act 2014 (Consequential Modification) Order 2019

Debated on Wednesday 26 June 2019

The Committee consisted of the following Members:

Chair: David Hanson

† Argar, Edward (Parliamentary Under-Secretary of State for Justice)

† Charalambous, Bambos (Enfield, Southgate) (Lab)

† Clark, Colin (Gordon) (Con)

† Clifton-Brown, Sir Geoffrey (The Cotswolds) (Con)

† Gaffney, Hugh (Coatbridge, Chryston and Bellshill) (Lab)

† Heaton-Jones, Peter (North Devon) (Con)

† Kerr, Stephen (Stirling) (Con)

McGovern, Alison (Wirral South) (Lab)

Mahmood, Shabana (Birmingham, Ladywood) (Lab)

† Menzies, Mark (Fylde) (Con)

† Philp, Chris (Croydon South) (Con)

† Sobel, Alex (Leeds North West) (Lab/Co-op)

† Spelman, Dame Caroline (Meriden) (Con)

† Stephens, Chris (Glasgow South West) (SNP)

† Stewart, Iain (Milton Keynes South) (Con)

† Sweeney, Mr Paul (Glasgow North East) (Lab/Co-op)

Whitfield, Martin (East Lothian) (Lab)

Ben Sneddon, Committee Clerk

† attended the Committee

Third Delegated Legislation Committee

Wednesday 26 June 2019

[David Hanson in the Chair]

Draft Victims and Witnesses (Scotland) Act 2014 (Consequential Modification) Order 2019

I beg to move,

That the Committee has considered the draft Victims and Witnesses (Scotland) Act 2014 (Consequential Modification) Order 2019.

I am grateful for the opportunity to debate the draft order, which was laid before Parliament on 16 May 2019. It is made under section 104 of the Scotland Act 1998, which allows for legislative provision

“necessary or expedient in consequence of…any Act of the Scottish Parliament”.

In this case, a provision is required in consequence of the Victims and Witnesses (Scotland) Act 2014. We are introducing the draft order at the request of the Scottish Government.

Through the 2014 Act, the Scottish Government sought to put victims and witnesses at the heart of the justice system and improve the information and support available to them. The Act made provision for the creation of a new Scottish victim surcharge to be imposed on offenders in certain cases, which will be set out in forthcoming Scottish Government regulations under the Act. The surcharge will be collected by the Scottish Courts and Tribunals Service, which currently collects court fines; the money collected will be transferred to the victim surcharge fund, which will be held and managed by the Scottish Government to provide support to victims of crime.

The order will amend section 24 of the Criminal Justice Act 1991, which gives the Secretary of State the power to introduce a process whereby courts can apply for a deduction from an offender’s benefits to pay for a fine or compensation order. That power has been in place for the victim surcharge in England and Wales since 2007, but as a reserved power it does not currently extend to the new Scottish surcharge.

By amending section 24 of the 1991 Act, the order will enable the Scottish victim surcharge to be regarded as a fine for the purposes of the legislation underpinning the deductions from benefits regime, as is already the case in England and Wales. It will facilitate recovery of the surcharge via deduction from an offender’s benefits, bringing Scotland in line with the powers in England and Wales and ensuring effective operation of the Scottish victim surcharge. It will therefore increase the funds available for providing support to victims of crime in Scotland.

The territorial extent and application of the order is England, Wales and Scotland. Application in England, Wales and Scotland is required because the courts in Scotland will need to be able to make the deduction from benefits order, and the agencies in England, Wales or Scotland may need to carry out the relevant processes to ensure that those deductions are made. That will also provide for offenders who move from Scotland to England or Wales after conviction, or who reside in England or Wales but committed the offence in Scotland and were therefore tried by a Scottish court.

The UK Government and the Scottish Government have worked closely together to ensure that the order will make the necessary amendments in consequence of the 2014 Act. The order demonstrates that the UK Government remain committed to strengthening the devolution settlement and shows Scotland’s two Governments working together. As I have indicated, it is necessary, and I hope that the Committee will agree that its practical result is to be welcomed. I commend it to the Committee.

It is a pleasure to serve under your chairmanship, Mr Hanson. The order makes provision in connection with the proposed victim surcharge fund under the Victims and Witnesses (Scotland) Act, the relevant provisions of which have yet to commence. In layman’s terms, it will provide for sums to be deducted in respect of the VSF, to be taken directly from the offender’s benefits. That will bring the system in Scotland in line with the practice employed in England and Wales.

I will focus on two areas: the principle of the policy, and the practicalities. I shall begin with the principle, because it is important to set out why I believe that this measure is punitive and should be approached with caution. When discussing the implications of the policy, it is vital that the Committee remembers that 14 million people in the United Kingdom live in relative poverty—it is not me who says that, but the United Nations special rapporteur. That poverty is driven by a variety of factors, from low-paid and insecure work to cuts to our social security system and the Government’s flagship universal credit policy.

Universal credit has been a disastrous policy. The roll-out was badly thought out and the Government have been tin eared to the warnings and concerns raised by charities and non-governmental organisations. It was evident from an early stage that the policy pushed people into poverty. Evidence from the Trussell Trust shows that on average there was a 52% increase in food bank use in areas that had had universal credit for 12 months, compared with a 13% increase in areas where universal credit had not yet gone live or had been live for three months or less.

Order. I am listening carefully to the hon. Gentleman, but I hope he can relate his comments to the victim surcharge aspect of the order. Obviously, it is important to have background material, but he must reflect on the victim surcharge.

Absolutely. This all combines to affect the individual’s income, which I am trying to set in the wider context. I hope you will indulge me for a little longer, Mr Hanson, while I do that. It is important for policy makers to understand the consequences of such decisions.

The Department for Work and Pensions’ universal credit claimant survey found that more than 65% of claimants in rent arrears fell into debt after they had made their first claim. Some 44% of claimants surveyed said that three months into their claim, paying their bills was a constant struggle and they were falling behind in payments, and that after nine months, there had been little improvement. The same survey found that 40% of claimants were struggling to cope well financially on universal credit.

There are a host of problems with the advance payment mechanism, such as that the repayments do not take into account people’s ability to afford them, that small deductions can have a huge impact on people who are living on a financial knife edge, and that people are hit with multiple repayments at once. The system works by loaning the individual up to 100% of their first universal credit payment, which is then paid back through deductions to the claimant’s monthly payments as soon as they begin.

That is vital in the context of what we are discussing, because the evidence shows that when the deductions are made, people are pushed further into poverty. That is exactly what I fear will happen with deductions from an individual’s benefits to pay the VSF.

I listened to what the Minister said and I have read the explanatory notes. It appears that the system is that there is a sliding scale of deductions depending on the fine levied. I wonder whether the hon. Gentleman knows, or will press the Minister, on whether there is any discretion in the matter or whether it is an absolute deduction.

My understanding is that it is a blunt instrument and it may not be applied intelligently. The detail will be subject to the decision making of Scottish Ministers and Members of the Scottish Parliament, who will determine the full nature of the roll-out as it pertains to Scotland.

I sound a cautionary note. As I said, the evidence shows that the deductions push people further into poverty. Citizens Advice Scotland has expressed concerns, which are detailed in the document that it helpfully provided, about the level of deductions that can be made from universal credit payments. It highlights cases where claimants have been left with as little as £49 to survive an entire month. Hon. Members sometimes do not like to hear it, but unfortunately that is the reality of what is happening to the most vulnerable people in our society who have fallen on hard times and are reliant on our social security system. It is failing them.

I have a further point on the policy’s principle, which links to the practicality of the order. About seven months ago, Police Scotland released a report that stated that

“welfare reform, including the introduction of universal credit, may have helped push robberies up by 30% over the five-year average.”

That is a damning statistic, which leads me to the substance of the order. The people who are included in that Police Scotland report are the same people who are likely to be affected by the order.

It is not necessarily the place of the Committee to block the order, which ultimately deals with a procedural issue, so, on that basis, the Labour party will not oppose it. It is blindingly obvious, however, that there is a complete absence of detail as to how the VSF will operate in Scotland when the order has commenced, as alluded to by the hon. Member for The Cotswolds. Therefore, I would be grateful if the Minister could answer some questions about how he envisages the scheme working.

First, does the Minister have any idea of the sums likely to be recovered directly from benefits? The explanatory notes state that no impact assessment was undertaken. It would be helpful to understand what value he expects to be returned. I am also interested in his thoughts on whether the administrative cost of collecting directly from benefits outweighs the sums of money likely to be obtained.

Secondly, can the Minister say anything about the operation of the VSF? For example, what model for imposition is likely to be chosen? If it is linked to the court fine that has been imposed, there may have been some factoring in of the offender’s financial resources, so that the VSF imposed would be proportionate to the offender’s means. However, as the Minister will know, there are various ways in which the VSF can be imposed that are far more punitive and do not take into account the offender’s financial resources. I would be grateful if he could shed some light on that. On that point, I would like to say to the Minister that I believe that the VSF is imposed in England and Wales without being means-tested. As a result, many would argue that it is a second penalty on offenders who have already been punished for their crimes, whether through a financial penalty or a custodial sentence.

The process that needs to be followed with regard to repayment means that many fines remain unpaid. In other words, an offender has to make payment of any direct compensation order to the victim, then the victim surcharge and then a fine. Logic would surely dictate that adding a further fine in the form of the victim surcharge is somewhat counterintuitive.

I would also be grateful if the Minister could clarify a couple of final points. In court, judges are made aware of the financial circumstances of the offender on conviction, as well as the circumstances of the offence. With a victim surcharge, how should this be considered when the judge is sentencing in order not to impose a draconian penalty on the offender who cannot pay the total sum? I appreciate that without details of how the VSF would work in Scotland, it is not easy to predict such things but it seems clear to me that, when the operation of the VSF does become clear, its relationship to sentencing must form part of the judicial training provided by the Judicial Institute for Scotland. What appeals mechanisms will be put in place to ensure that appeals, of which there are likely to be many, are dealt with swiftly?

Finally, I would be grateful if the Minister could outline what intergovernmental discussions have been had about the practical operation of this system. It seems logical that, if we are seeking to bring the Scottish system into line with England and Wales, there should be co-operation on this issue between the different Governments, to ensure that offenders in Scotland are dealt with in the same manner as those in England and Wales.

As I said earlier, the Labour party will not oppose today’s order, as it is a procedural issue. However, there are a lot of unanswered questions on detail, pertaining both to the principle of this policy and its practical operation. It is vital to take full cognisance of them as we make this decision today.

It is a pleasure to see you in the Chair, Mr Hanson. The Minister will appreciate that our exchanges today will be less adversarial than those on the Trade Union Bill Committee, on which he served. I will support the statutory instrument today. I understand that, as the Minister says, there have been quite intense discussions with Humza Yousaf MSP, the Justice Secretary of the Scottish Government, with whom I share a parliamentary office.

As has been outlined, the order makes provision in connection with the proposed victim surcharge fund. It is important in this debate to recognise that it is about supporting the victims of crime. The order will provide for sums to be deducted direct from offenders’ benefits, as takes place in England and Wales. It is estimated that the measure will add £1 million to the fund available to victims. It will make offenders accountable for any harm or damage caused by their actions and will support the needs of victims.

Examples of what that might mean include financial assistance for funeral costs, increasing the security of a victim’s home and the replacement of essential furnishings that have been damaged during an offence. I will support the statutory instrument today. I do not think it is very controversial and there have been discussions in the Scottish Parliament about it. I am sure that any debates about implementation or concerns about the funds can take place at that level. I thank you, Mr Hanson, for allowing me to make some remarks.

I thank the shadow Minister and the hon. Member for Glasgow South West for their contributions to the debate this afternoon. As we have set out, this order facilitates the recovery of the Scottish victim surcharge by deductions from offenders’ benefits in appropriate cases.

I will address some of the points made, primarily those made by the shadow Minister. First, I thank the hon. Member for Glasgow South West for the tone of his comments, the co-operation between our two Governments and our constructive relationship with the Government in Holyrood. To answer one of the shadow Minister’s points, there has been extensive correspondence and work together on this at both the ministerial and official levels.

The discussions and close working will continue as the Scottish Government makes appropriate decisions on the form and roll-out of the victim surcharge, so there will continue to be close interaction between the England and Wales scheme and the Scottish Government to ensure effective communication and that the two schemes are commensurate. I sense that the shadow Minister may wish to intervene on that point.

I thank the Minister for his clarity about the discussions that have taken place. However, it is clear that the DWP has an obligation to ensure that it takes a holistic overview of a claimant’s circumstances, and to allow the claimant to negotiate the rate of the reduction to ensure that they are not placed in unnecessary and draconian financial hardship, which can surely only drive the negative behaviours that might precipitate crime in the first place. It could end up becoming a vicious cycle, and it is surely important that we safeguard against that.

I am grateful for the intervention; I will come on to the affordability point, which covers a number of the points that the shadow Minister raised, in a moment.

At a higher level, we must recognise that this is an important and positive measure. I believe that it is a reflection of the fact that society deems it right that those who commit crime also make a contribution to the victims of crime as recompense. I think that point was alluded to by my friend the Member for the The Cotswolds—I think he is right honourable, but if he is not, he should be. Like the shadow Minister, he spoke about affordability.

On the affordability point, payment should be set at a level that is manageable for offenders. The victim surcharge will not be a standalone charge; at the outset it will be linked to fines and, as the shadow Minister mentioned, when the court applies for deductions from benefits it must inquire about the offender’s means. The DWP also applies an ability to pay test when considering deductions from benefits and will consider the recovery of the whole monetary amount, inclusive of the fine and surcharge, in that context when applying that test.

An offender will be able to appeal the decision of the Secretary of State on the level of deductions from benefits, so there are measures in place to ensure that deductions are affordable. In this context, I also highlight the Criminal Procedure (Scotland) Act 1995, which states that the court must take into account the means of an offender to pay when setting a fine. Given that this order places the surcharge in the context of a fine and defines it as such, that would be applicable, so there is that consideration.

On the imposition of the surcharge and appeals, notwithstanding the point about the Secretary of State, the imposition of a victim surcharge itself cannot be directly appealed, but an offender can appeal the fine that the victim surcharge would be attached to and, if they are successful and the amount of the fine is reduced, the surcharge would consequently reflect the new level of fine. If the court decides to quash the decision to impose a fine and substitutes something else, such as a community sentence or another form of punishment, the victim surcharge will fall at that stage, as it is only imposed with a fine and in the context of the overall affordability or means of the offender to pay consideration or test, which I mentioned. I will be fair to the Committee: that can change in the future, but I have set out the position as it is.

The other point that the shadow Minister raised was about the implementation of the scheme and its operation. I suspect that he knew the answer when he asked the question, because he wanted to make his point: the operation of the scheme is, of course, for the Scottish Government to set out in due course. Today’s order, and the purpose of the Committee, is to devolve in a procedural, regulatory way the specific power relating to the ability to deduct from benefits, given its reserved nature. In a sense, what we are doing today is considering a technical enabling order, which will allow the Scottish Government to use that power. They will define the scheme and how it operates within the Scottish context in Holyrood.

I think I have addressed the main points raised by the shadow Minister, by my hon. Friend the Member for The Cotswolds and by the Scottish National party spokesman, and therefore I commend the order to the Committee.

Question put and agreed to.

Committee rose.