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

Volume 798: debated on Wednesday 26 June 2019

Motion to Approve

Moved by

My Lords, this order is necessitated by the Victims and Witnesses (Scotland) Act 2014. Through this Act, the Scottish Government sought to improve the information and support available to victims and witnesses, and to put them at the heart of the justice system in Scotland. The Act also created a new victim surcharge fund, which will use the money raised from this surcharge to provide support to victims of crime.

The order will amend 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.

This process has been in place for the victim surcharge in England and Wales since 2007. However, social security is for the most part reserved and, therefore, the Scottish Government are unable to apply the power to the new Scottish victim surcharge. This order, if approved, will allow Scottish courts to apply to the Secretary of State for a deduction to be made from an offender’s benefits.

This order demonstrates that the UK Government remain committed to strengthening the devolution settlement and shows Scotland’s two Governments working together. I commend the order to the House and beg to move.

My Lords, looking at the matter from the point of view of a sheriff sitting in a court in Scotland, I think that the order is much to be welcomed. The fact is that people move about, and some offenders coming to Scotland from England or Wales disappear back to England or Wales after they have been sentenced. It is necessary that this measure be passed so that the order that the sheriff would like to make can be properly put into effect.

My Lords, we also support the order, but I have one or two questions for the Minister. We heard in the previous debate about legislation that came into effect in 2012 and we were only now getting around to considering the order. My understanding is that the Victims and Witnesses (Scotland) Act was passed by the Scottish Parliament in late 2013 and received Royal Assent in January 2014. Here we are, more than five years after Royal Assent, considering this order.

Paragraph 7.1 of the Explanatory Memorandum states: “Included in these measures”—that is, the measures in the 2014 Act—

“is the victim surcharge, a new financial penalty to be imposed on offenders in certain cases as will be set out in the Victim Surcharge (Scotland) Regulations 2019”.

Is it right that we do not yet have these regulations, so we do not know what will be in them, what the circumstances would be nor the measure of the penalties? I think that there is reference somewhere to a sliding scale, but has the Minister seen any draft regulations? In inviting the House to approve this measure, it might have been reasonable to give us some idea as to what precisely the Scottish Government had in mind. I know the Scottish Parliament will be able to look at this order, but it would have been helpful to have had a bit of colour: if he has that information, it will be very welcome.

I emphasise that it has been a very long journey to get here. On a visit to Victim Support Scotland in August 2014, the then Justice Secretary in the Scottish Government, Mr Kenny MacAskill, met victims who had been helped by the existing fund, run by that very important organisation. Mr MacAskill indicated that they were the kind of victims who would be helped by the victim surcharge fund. Indeed, the Scottish Government’s press release accompanying Mr MacAskill’s visit said:

“A new fund providing more than a million pounds a year of practical help for victims of crime is set to be introduced in the coming months as part of the Scottish Government’s package of measures to improve the support for victims and witnesses in Scotland … The Victim Surcharge Fund will be established in the next few months and is likely to be administered by Victim Support Scotland”.

That press release was dated 13 August 2014.

A series of questions have been asked in the Scottish Parliament about when we are actually going to get these regulations. My Liberal Democrat colleague Alison McInnes, then Member for North East Scotland, asked in July 2015,

“what (a) criminal offences, (b) circumstances and (c) descriptions of offender can cause a victim surcharge to be imposed”.

She was told by Mr Michael Matheson, who by that time had taken over from Mr MacAskill as Scottish Justice Secretary:

“The victim surcharge is not yet operational, nor have the relevant provisions in the Victims and Witnesses (Scotland) Act 2014 been brought into force. Therefore, no surcharges have been imposed or payments made. The victim surcharge is due to be introduced later in 2015, ensuring that offenders contribute towards a fund specifically to support victims of crime. Preparatory work for the establishment and administration of the fund is ongoing … details of how it will operate, including the circumstances in which a surcharge is to be imposed, will be set out in subordinate legislation and will be subject to parliamentary approval in due course”.

Fast forward—or not-so-fast forward—to February 2016, when Ms McInnes was given a further answer from Michael Matheson:

“Preparatory work for the establishment and administration of the victim surcharge fund is on-going. The timetable for the introduction of the fund has been influenced by a number of factors, including further detailed consideration of viable options for delivery and the potential role of third sector or other organisations in this process”.

Then we get to an answer given to my colleague, Member of the Scottish Parliament for Orkney, Mr Liam McArthur, who asked in December 2016 what progress had been made in establishing the victim surcharge fund and when it was expected to be operational and issue its first payments. To this, he got the reply:

“It is the Scottish Government’s intention to establish the fund in 2017 and to initially impose the surcharge on offenders given a court fine. Further details of how the fund will operate will be set out in subordinate legislation, which will be subject to parliamentary approval in due course”.

So here we are at the beginning of 2017, three years after Royal Assent, and we are still talking about it being done “in due course”.

There were further questions of a similar kind. Mr Humza Yousaf, who had by this time taken over from Mr Michael Matheson, said on 17 July last year:

“Our intention is to announce further details on the VSF, following the summer Parliamentary recess”.

The then Conservative Member for North East Scotland, Liam Kerr, asked in October 2018 on what date the fund would become operational. Mr Yousaf, replying on 7 November 2018 said:

“In order to ensure effective operation of the victim surcharge in Scotland, an Order under section 104 of the Scotland Act 1998 … is required to amend section 24 of the Criminal Justice Act 1991 … which is reserved”.

That is the very point we are debating in relation to this order, but one notes that not until November 2018 did the Scottish Government ever say that there was any issue about trying to get a Section 104 order. Will the Minister tell us when the Scotland Office was first approached by the Scottish Government with regard to identifying the necessity for such an order? Mr Yousaf went on to describe the order and said:

“The UK Government have agreed in principle to this Order and have estimated that, once all the necessary steps are completed, it will come into force in summer 2019, subject to UK Parliamentary timescales. The Victim Surcharge (Scotland) Regulations, which will implement the surcharge, will be laid before the Scottish Parliament, as soon as practicable after the section 104 Order comes into force”.

In all fairness to the United Kingdom Government, they have held to summer 2019 reasonably well. In a reply to a parliamentary question from Liam McArthur last month, that timescale was repeated by Mr Yousaf in very similar terms.

It is widely agreed that this is an important provision. It is one that will actually give support to victims from the fund created, and it is a matter of considerable regret that it has taken the Scottish Government five years after legislating to even come up with a proposal on how their flagship policy might work. That is not a responsibility of the United Kingdom Government, but it would be very helpful for us to have some colour as to the detail of the proposal. For example, while it is important that we look at the position of victims, we also need to consider those who might have this sanction applied to them. What are the guidelines to ensure that they do not have so much taken out of their benefits that they then struggle to make ends meet, which might actually drive them, in some circumstances, to further crime? That is a detail we do not know and if the Minister has any information on that, it would be very welcome.

As I say, my Liberal Democrat colleagues in the Scottish Parliament have been pushing the Scottish Government hard to make progress on this and it is important that we have this order tonight. We very much welcome it and will certainly give it our support.

My Lords, I thank the Minister for introducing this brief order, which this side does not oppose. It is commendable that the Scottish Parliament has replicated the victim surcharge scheme that has operated in England and Wales since 2007. It should be a reasonable example of the cross-fertilisation of legal innovation that can occur from time to time within the UK.

What is perhaps surprising, as the noble and learned Lord, Lord Wallace, narrated in some detail, is that, having gone to the trouble of introducing this instrument into Scottish criminal law in 2014, some five years on victim surcharges have not been brought into force in Scotland. I note from the Explanatory Memorandum that it appears that some statutory amendment is required to be undertaken by Her Majesty’s Government before the relative support for victims and witnesses may be made effective.

I have a few questions for the Minister. On the assumption that the victim surcharge would be as useful in Scotland as in England and Wales, should not the scheme have been operational in Scotland some time ago? Does responsibility for the delay lie with Her Majesty’s Government, with the Scottish Government or, indeed, with both? Is there any particular reason why the scheme should not have been operational in Scotland? Is it perhaps because problems have arisen with the scheme in England and Wales that no one wishes to visit on the people of Scotland? Is there any assessment of how much money has been denied to the victims of crime in Scotland consequent on the non-implementation of the scheme? The noble and learned Lord, Lord Wallace, identified a figure of £1 million per annum. By my arithmetic, that would mean £5 million has been denied to victims in Scotland. Is that correct?

On the assumption that the scheme will be implemented, how is it envisaged that cross-border issues will be determined? Where the convicted person is resident in another part of the UK, will a special recovery procedure be required for the victim surcharge? I appreciate that the Minister may not be able to answer all these questions immediately; any written answer would be welcome.

My Lords, this is one of these rather interesting areas in which I seem to be called on to explain the inscrutable workings of the Scottish Government, which I am unfortunately rather ill equipped to do. The noble and learned Lord, Lord Wallace, raised a number of issues regarding the lengthy delay. To be frank, I do not have an adequate answer to give him on behalf of the Scottish Government.

I have before me a statement which says that the Scottish Government have undertaken detailed consideration and consultation. Clearly it has taken a very long time. Exactly why that has been the case remains to be seen. Indeed, through a series of questions asked by a number of Members of the Scottish Parliament, it is quite evident that the Scottish Government were very optimistic that this would be delivered—that the answer would be arriving now—and that has simply not happened.

The noble and learned Lord, Lord Davidson, asked who is to blame for this. I would not use the term “blame”, but I suggest that the Scottish Government have responsibility in that regard. When we learned that there needed to be an amendment of the legislation which was reserved, we of course acted expeditiously to move that forward and will do so. Today is a measure of how quickly we have been able to move. I have not had sight of the details of the Scottish Government’s proposals. While I could speculate that they may look rather like the English and Welsh version—I would only be speculating in saying that—I anticipate that this will come through the Scottish Parliament in due course. I am afraid that I cannot speak on its behalf, however, so I am unable to answer that question.

The noble and learned Lord, Lord Hope, raised the issue, echoed by the noble and learned Lord, Lord Davidson, of those individuals who find themselves outwith the territorial jurisdiction of Scotland—in Wales or in England. That is a correction which we can take forward. As to the mechanism whereby that will be undertaken, I have to admit to the noble and learned Lord, Lord Davidson, that I do not have the detail on that. If it is equivalent to the English or Welsh version, I can certainly have that information placed in the Library. If it is some variation on that, we will have to wait until the Scottish Government determine what it should look like.

As to the amount of money not gathered as a consequence of the length of delay, the noble and learned Lord, Lord Wallace, is correct in his figures. The estimate is that around £1 million is available to be gathered in this way, but that of course depends on the details of the Scottish Government’s regulation, which I do not have. I am not sure whether that is an accurate reflection of the money or whether it is just speculation on our part. It may be that, once we have more detail on this, I can secure that information and place it in the Library. Of course, the avid Members of the Scottish Parliament may be better equipped to interrogate the Scottish Government further on these issues, about which I am afraid I have remarkably little information to satisfy noble Lords.

Perhaps I might ask the Minister something that hopefully will be within his responsibilities. The Explanatory Memorandum says that it has been,

“prepared by the Office of the Secretary of State for Scotland”.

Paragraph 6.1 states:

“On a practical level, there need to be enforcement measures to ensure that the victim surcharge is paid. One such measure is deduction of sums of money from the relevant offender’s benefit payments”.

Given that that was written by the Office of the Secretary of State for Scotland, can one reasonably infer that there are other ways in which the other enforcement measures could have been done—and, indeed, that they could have been used against people who do not have benefits and might be very wealthy? Therefore, given that that is in an Explanatory Memorandum from the UK Government, can the Minister explain why an interim order was not brought forward before there was a need for this particular one?

Again, the noble and learned Lord asks a question to which I am afraid I do not have an adequate answer in terms of an interim approach to this. Scotland has two Governments, and of course we are active in the area where we can control the elements within our remit. The Scottish Government are responsible for those matters which they must determine and drive forward. As a consequence of that, I am less able to answer the question.

However, I do have an answer to the question of whether the rates of subtraction from benefits are a potential risk to the individual’s ability to pay, or indeed to struggle to pay. The DWP has set out very clear guidelines to avoid any suggestion that the deductions themselves are in any way harmful to the individual. If these guidelines are followed in the Scottish example, I anticipate that this would therefore not be an issue that would occur in the Scottish Government’s proposals. Again, I am speculating on what they will be putting in there; I do not have that detail.

As I move this forward and welcome the support of the House this evening, I suspect that that the Members of the Scottish Parliament may well be better equipped to continue to prod the Scottish Government in order to elicit the responses which I have been unable to deliver on their behalf. On that basis, I hope that I can move forward and commend this order to the House.

Motion agreed.

House adjourned at 7.38 pm.