Victims and Witnesses (Scotland) Act 2014 (Consequential Modification) Order 2020
Viscount Younger of Leckie
To move that the Virtual Proceedings do consider the draft Victims and Witnesses (Scotland) Act 2014 (Consequential Modification) Order 2020.
Viscount Younger of Leckie (Con)
My Lords, the draft order, which was laid before the House on 25 March 2020, is part of the Government’s ongoing commitment to devolution.
I start by thanking our police forces for the vital work they carry out on a daily basis. Throughout the Covid-19 epidemic, I am sure that noble Lords have heard of shocking cases of police officers and staff being purposefully spat at or coughed on. In Scotland alone, during the first three weeks of lockdown, there were more than 400 crimes against police employees, and more than 100 cases had a Covid element; 174 were recorded as assaults on police officers.
However, police assault is not confined to the pandemic. Indeed, the honourable Member for Edinburgh West, speaking in the other place a few weeks ago, provided a moving account of her own family’s experiences of facing assault while working in the police service. This is not acceptable, and I am pleased to say that the order before us today highlights how Scotland’s two Governments have been working closely together to ensure that police in Scotland have greater access to physical and mental support services when these dreadful assaults happen.
I will begin by providing some background to the order, which is to be made under the Scotland Act 1998. This Act devolved powers to Scotland and legislated for the establishment of a Scottish Parliament. Scotland Act orders are secondary legislation, made under the Scotland Act 1998, which are used to implement, update or adjust Scotland’s devolution settlement. The order before noble Lords today is a Section 104 order which allows for necessary or expedient legislative provision in consequence of an Act of the Scottish Parliament. It is positive for the union and for the effective functioning of devolution that the UK Government fulfil the function of passing Section 104 orders where legislative provisions are necessary or expedient.
I will explain what the instrument does. This order is made in consequence of the Victims and Witnesses (Scotland) Act 2014 and has been requested by the Scottish Government. Through the 2014 Act, the Scottish Government sought to improve the information and support available to victims and witnesses. In addition, the Act created a new financial penalty, called a restitution order, to be imposed on offenders found guilty of assaulting police officers or other prescribed persons. This order amends Section 24 of the Criminal Justice Act 1991 to make reference to the restitution order, and specifies that it should be handled in the same way as a fine for the purpose of that section.
In doing this, the order makes changes to benefits law, which is within the reserved field of social security. It is outside the executive competence of Scottish Ministers to facilitate or make changes to benefits. Therefore, this order has been taken forward by the UK Government to implement the Scottish Government’s required changes.
I will now explain what the Scottish Government intend to do with the change in legislation. As I mentioned, Scottish courts will have the ability to administer a restitution order when an assailant is found guilty of assaulting a police officer. The money collected will then be transferred to a restitution fund, held and managed by the Scottish Government—although functions can be delegated to a third party for the purpose of operating the fund. The fund will directly benefit police officers and staff by providing them with high-quality support where necessary.
The Scottish Government have worked closely with stakeholders such as the Scottish Police Federation, the Scottish Police Benevolent Fund and the Police Treatment Centres to ensure that the new restitution fund will support the physical and mental health and well-being of those affected. In addition, a public consultation paper, Making Justice Work for Victims and Witnesses, was published in July 2012, prior to the introduction of the victims and witnesses Bill in Scotland. The responses to this helped shape the design of this restitution order.
Where restitution orders are not paid, this order allows for Scottish courts to apply for a deduction from benefits order to pay the restitution order, in the same way as many other fines or compensation orders would be paid. Following this amendment, the Department for Work and Pensions will recover restitution orders on behalf of the Scottish Courts and Tribunals Service by direct deduction from an offender’s benefits.
Dependent on the Section 104 order being passed today, the intention is to progress the necessary Scottish statutory instruments in the Scottish Parliament, following the Summer Recess. Implementation of restitution orders will be through commencement of Section 25 of the 2014 Act.
This order demonstrates the commitment that the UK Government show to strengthening the devolution settlement and to partnership working between the two Governments to deliver for Scotland. It will make a real difference to the lives of affected police officers and staff in Scotland. It will ensure that there are greater resources available to support specialised services, such as the extremely important work of the Police Treatment Centres in Auchterarder and Harrogate. User testimonials sum up the value of such services, with one user reporting that “the practitioners and staff are truly amazing people, who go out of their way to ensure officers are fixed and well for duty”.
It is only right that police officers can access the support that they need, and that offenders can contribute to that. I therefore commend this order to the House. I beg to move.
Lord McConnell of Glenscorrodale (Lab)
My Lords, I endorse all of the comments made by the Minister in his introduction, but I would like to use this opportunity to underline a number of key points and to ask a couple of questions to be answered at the end of the debate.
I too start by praising the work of police officers across Scotland, and their support staff, over the last three months. This has been a difficult time for them, trying to enforce lockdown conditions which, while clearer in Scotland, were not always straightforward. It is to their immense credit that after a few years of real difficulties in Police Scotland—politically and managerially, and in its governance—police officers and support staff have risen to the challenge with real dignity, and a firmness that has made a real impact. We should thank them for that.
The order is important and we of course should endorse it in the normal fashion. It is right and proper that Section 104 orders are part of the system of devolution in the UK, but it is also right and proper that we work in partnership to deliver them and ensure that the Scottish Parliament can implement its legislation.
I have some reservations about earmarking funding in any situation such as this, but I recognise the absolute benefits of this funding for the services and for police officers who have been subjected to assault. While restitution orders are a useful mechanism for raising that funding, their purpose is also to provide more deterrence against attacks on police officers and support staff in the years to come.
For that reason, these orders are welcome. There has been a good, healthy debate in the Commons, and the Scottish Parliament has passed the legislation, and we should support it too. However, I have two questions to pose to the Minister. First, is this order conditional for the Scottish Parliament and the Scottish Government to go ahead with implementation and enforcement of the orders themselves?
Secondly, and perhaps more importantly, it has been nearly seven years since this legislation was passed by the Scottish Parliament. I would be interested, in the interests of transparency, to have the Government confirm when the Scottish Government formally requested that this Section 104 order be processed through the Houses of Parliament. It would be helpful, not least because up to £1 million could have been collected in restitution orders since then. That sum of money obviously has not been available and could have been if the order had been processed more quickly. Understanding the date of the formal request would be helpful to make sure that this decision is as transparent as it possibly can be.
With those remarks, I am happy to endorse the order and the action of the UK Government in working with the Scottish Government to make this happen.
Lord Campbell of Pittenweem (LD)
My Lords, there is no dispute that this legislation, in the form of a statutory instrument, should pass. What is more surprising, as has just been pointed out by the noble Lord, Lord McConnell, is that it has taken so long to come before us. I associate myself with his request for some transparency as to why that should be.
For part of my professional life, I worked very closely with the police, alongside, as it happens, the noble and learned Lord, Lord Hope, who is to speak after me, in the prosecution of serious criminal offences in the High Court of Justiciary in Scotland. But my appreciation for the police is based on a simple proposition. The police are the first line of defence of our community and community values. Of course, that defence has been most evident in the responsibilities that the police have had to ensure that the terms of the lockdown are properly observed.
We have heard, not least in the debate in the other place, that that responsibility is subject to the ever-present risk of life and limb. In particular, I draw attention to the eloquent discussion of that matter from my honourable friend the Member for North East Fife Wendy Chamberlain—happily now my successor—who, of course, served in the police herself and who comes from a family with a long tradition of police service.
I come back to where I began: just exactly why did it take so long? As the noble Lord, Lord McConnell, pointed out, money has been lost as a result. Was it a political difficulty or some problem of officialdom? As he pointed out, £1 million simply has not been available for the purpose for which it was intended. The Scottish Parliament is always asking for new powers. It would have a stronger case for doing so if it was able to show that such powers as it has been given are expeditiously operated.
Two other points occur to me. One is that, when asked for an estimate of how many applications might be made for a restitution order, what was said in the debate in the other place was that there will be somewhere between 250 and 500. There was no factual basis for that estimate. It has great significance when one comes to consider just how much might have been and will be achieved. At the same time it was said in the other place that it was expected that the average value of a restitution order would be £350. Your Lordships can do the arithmetic: at 250 a year it is £87,500, and at 500 it is £175,000.
I have two last questions that I think are important. What assessment has been made of the impact on the welfare of the individuals, or the families of individuals, against whom such an order might be made? I have in mind the particular difficulties that we all know about in universal credit. It would be helpful to have some understanding of what assessment of impact has been available.
My other point, which I offer as an argument for not passing the order, is that it is a little difficult to understand whether the restitution order is a punishment or designed to be a raiser of revenue. Given the circumstances, it is not difficult to reach the conclusion that it is actually neither. That is a matter for some further consideration.
Lord Hope of Craighead (CB)
My Lords, it is a pleasure to follow the noble Lord, Lord Campbell of Pittenweem, in expressing support for this order, but I am concerned by the statistics that the Minister mentioned at the outset of his speech. A disgraceful number of assaults against police officer have taken place during the present crisis. I express my admiration for the way our police forces have performed their quite difficult duties during this very difficult time, in weather that rather encouraged misbehaviour, I am afraid, in certain parts of the country.
At first sight, it seemed rather odd that it was thought necessary to resort to a UK SI to modify an Act of the Scottish Parliament, but those who prepared the Explanatory Memorandum have set out the position very well, as indeed the Minister did in his opening remarks. We are concerned here with a penalty that can be imposed by the courts in Scotland under the 2014 Act for an offence under another Scottish statute, the Police and Fire Reform (Scotland) Act 2012, for assaulting a police officer. To make this penalty more effective in the case of offenders with little means, it is necessary to amend a UK statute—the Criminal Justice Act 1991—which of course can be done only by an order made in this Parliament, under Section 104 of the Scotland Act 1998, as the Minister pointed out.
However, I would be grateful if the Minister could say a little more about how this system is likely to work in practice. The restitution order is an additional penalty for an offence under Section 90 of the 2012 Act—additional, that is, to a sentence of imprisonment or a fine. It seems rather unlikely that a sheriff would make a restitution order on its own, although the new Section 253A, introduced in the 2014 Act, would permit that, so we should have in mind an offender who is being asked to pay a fine, as well as having to satisfy a restitution order out of such money that he has at his disposal.
Where a restitution order is made, the amount involved could be substantial. The sheriff has power under the statute to require the offender to pay an amount not exceeding the prescribed amount, which currently stands at £10,000. The 2014 Act does not give any guide as to how a sheriff is to decide what is appropriate, but we know that the amount ordered does not go to the police officer as a form of compensation for what he or she has suffered at the hands of the offender. It is to be paid to the clerk of court for payment to Scottish Ministers as a contribution to the restitution fund, the purpose of which the Minister described.
I have known—I am sure that the noble Lord, Lord Campbell, does too—ever since my early experience as a legal trainee in the sheriff courts how difficult and how depressing it can be to extract money by way of a fine from people of limited means. Offenders are given time to pay, but all too often the payments are not made. Deducting money from their source of income so that they cannot avoid or delay payment is the most secure way of doing it. That is the idea that has given rise to this order. But almost by definition those who are on social security benefits are people of limited means.
Section 24 of the 1991 Act allows the court, after inquiring as to the offender’s means, to apply to the Secretary of State to deduct sums from any amount payable by way of benefits, but will the Secretary of State have any say on how much should be deducted to avoid undue hardship to the offender or his family? What if the amount is to be paid over a long period and the benefit amounts change during that period? Can the periodical amounts be changed if there is a change of circumstances? Are sheriffs to be encouraged in hardship cases to dispense with a fine where a restitution order would be more appropriate? What is being done here might seem to be good idea, but we need to be reassured as to its consequences.
Lord Wei (Con)
My Lords, I share the sentiments of previous speakers about the amazing work of the police throughout our nations during this very difficult time. Normally, I would not have much to say about Scottish matters, having few connections, but having heard about some of the innovations over the years in the Scottish justice system, particularly around restorative justice, I am attracted to this discussion. I broadly welcome this measure in principle. Unquestionably there should be penalties for mistreating the police, particularly with the examples we have been hearing about, such as people spitting on them. It is right to get justice—financially, if necessary—in a way that cannot easily be avoided.
However, I am surprised that this measure is being put forward. I echo previous speakers in asking what thought has been given to the impact for those on benefits who are fined in this way? It would be perverse for the financial stress caused by this measure to cause offenders to reoffend, whether against the police or other people. That does not make sense to me, even if it gives a political win by being seen to be taking harsh action against those who oppose the police.
As part of the broader measures to rehabilitate the offender, including achieving justice and finding funds to support police officers and their families, this can make sense. However, what can be done to ensure that the guidance that sheriffs and courts are given is applied wisely and judiciously to have the optimum impact and to achieve all the goals it could achieve without some of the adverse consequences that may arise? I am keen to know what guidance will be provided or whether it will ultimately be left to the final judgment of the sheriffs and the courts.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, I too thank the noble Viscount, Lord Younger, for his excellent introduction. I also express some sympathy for him: having just answered the PNQ on Northern Ireland, he is now dealing with Scotland, yet he has no direct responsibility for either of them, unlike the noble Lord, Lord Duncan, had when he was in his former position.
The Government should sort this as quickly as possible. I echo what was said by my noble friend Lady Smith in the PNQ: this situation should not be allowed to continue. It is a matter between the UK Government and the Scottish Government, and there ought to be more contact and regular meetings between Scottish Ministers and UK Ministers. The noble Lord, Lord McConnell, will recall that at the start of the century, when I was Minister of State, we used to meet regularly—weekly, and sometimes more often—with Scottish Ministers. We had a discussion about free personal care with the DWP and the Scottish Government that we are dealing with now. These are important matters, and we need Ministers in Scotland and Northern Ireland to deal with them.
Returning to the order, I agree that the police are in the front line. It is outrageous that since 10 May, there have been over 100 coronavirus attacks on police. It is not always the perfect picture in Scotland that some in the Scottish Government like to portray. Restitution orders are going to be useful, principally, I hope, as a deterrent rather than bringing the money in. However, I have a few questions for the Minister, which I hope he will be able to answer. I have given him notice of one or two of them.
First, this is going to be quite a complicated procedure, and very difficult between the Scottish Government and the DWP. Is there any estimate of the cost of administering this, and how it compares with the actual money that will be brought in by the scheme? Secondly, will there be some arrangement for monitoring the scheme on a case-by-case basis—not just a blanket monitoring to see how it is operating, but monitoring the impact, as the noble Lord, Lord Wei, said, on the families of offenders? That is a very important point. The knock-on effect on the families of offenders could be very great indeed, and, as the noble Lord said, it could lead to some reoffending. It needs to be monitored very carefully. There need to be safeguards in relation to the unintended consequences of what is being proposed. Can the Minister indicate what the arrangements might be for reviewing this?
I hope that if the noble Viscount cannot answer these questions directly today, then he will take them up. Even though he does not have direct responsibility, he is answering on behalf of the UK Government, so I hope that he will take them up with the Scottish Government if necessary, and that if he cannot answer them today, he will write to me and to the other noble Lords participating in this debate.
Baroness Northover (LD)
My Lords, I too thank the Minister for his introduction to this SI.
During the coalition Government, when I was at the Ministry of Justice, I had a responsibility in relation to women offenders and women in prison. What I learned was chilling. We know that women are more likely to be poorer than men, and that women who come within the justice system, if they are parents, are more likely to be single parents. This is why prison is so devastating for them and for their families. When women go to prison, their children often go into care, and they often lose their housing and possessions. Therefore, I came to this proposal with that gender difference in the effect of penalties in mind.
I fully support the proposal that restitution should be part of a sentence, if judged to be appropriate. We certainly cannot tolerate assaults on police officers, or the other people prescribed here. I too pay tribute to the work that they have been carrying out in this pandemic. It is good to see the fund for victims, including caring for, treating and rehabilitating them, and it is good to hear that this will support the physical and mental well-being of victims. However, on reading the Explanatory Memorandum, I noted that
“an impact assessment has not been produced for this instrument as no, or no significant, additional impact on the private, voluntary or public sectors is foreseen.”
The phrase “no significant” impact is what I wish to probe; it was also mentioned by other noble Lords. I note that restitution may be required instead of, or in addition to, dealing with an offender in any other way. It is that “in addition to” which may be significant. I come back to the points that women tend to be poorer than men and have more childcare responsibilities. This order is about deducting from their benefits. This could be in addition to any other fine. Therefore, I want to know what assessment was made of this. Under equalities legislation, the differential effect of every policy is supposed to assessed with a gender lens. I recall, as Equalities Minister, needing to point out to the Treasury that it must do this. Internationally, we are required to do so by signing up globally to the sustainable development goals, and we urge all countries to look at the gender impact of their policies. Was that done in this case?
I have notified the Minister of my concern, in answer to his office asking me, and no doubt all of us, for prior notice of what we intended to ask. Therefore, it would not be a satisfactory answer to assume that there would be “no significant” impact in this case. How much on average are the restitution orders? To what extent are they used in addition to fines, or instead of them? What is the gender breakdown of those receiving them, and were any of these questions asked? In essence, did the Government properly consider any disproportionate effect on women and their children of restitution orders taking additional resources from their benefits? I look forward to the noble Viscount’s response.
Baroness Wilcox of Newport (Lab)
My Lords, I thank the noble Viscount, Lord Younger, for bringing this SI to us today and associate myself with the comments of my noble friend Lord Foulkes about the noble Viscount’s workload. He has no responsibility for Northern Ireland and Scotland, and that must be addressed.
I am grateful that this order is part of the Government’s ongoing commitment to devolution. The dreadful pandemic has thrown up more questions than answers as we seek to recover from its impact on our working and our personal lives. However, tensions have arisen from government information during the lockdown, as aspects of devolution, indeed the laws of the lands, have become mired in poor communication. Sadly, there has been an assumption by some in public life, the media and the wider public that the information disseminated from the UK Prime Minister’s office applies equally across the UK, taking little note of the devolution settlement that has been in operation since 1999 in our countries.
I am glad that officials in the UK Government and the Scottish Government have worked together on this provision and indeed others that are of value to the inhabitants of Scotland, and that it relates to the whole of the UK. It ensures that if people are in Wales or England, these measures apply. Under Scottish law, it is already a crime to assault a police officer, but this legislation allows for restitution orders to be brought into law and the court will be able to impose this new financial penalty. It is of course of significance that serving police officers who are victims of crime are now able to receive greater support for their needs, to support their physical and mental health.
We largely take it for granted that we work in a safe environment, but for serving police officers it can never be that simple. The threat of assault is ever present and over the past five years there has been a sustained increase in reported assaults on officers. Restitution orders are not just a financial penalty for those who assault police officers who are carrying out their daily work; they are about showing those officers that their work is greatly valued by society. We rely on the police every day, but never more so than in the difficult days placed on us by this pandemic.
At this juncture, I pay tribute to all police officers across the UK, but I must mention the work of Gwent Police, who are keeping us safe in my home area under the inspirational leadership of Chief Constable Pam Kelly, who always demonstrates that the best interests of the community are at the heart of policing in our area.
This is not just about money, of course, particularly for crimes of assault on police officers. It can matter greatly to victims of crime, who suffer not only physical effects but strains on mental health. That must not be underestimated. This statutory instrument will work with victims to recognise that the perpetrators will face serious consequences for their actions. It can therefore be fully supported.
There has been a seven-year wait for this scheme and once all stages have been reached in both Houses, it is vital that the Scottish Government implement these restitution orders without further delay. I associate myself with the remarks of my noble friend Lord McConnell about finding out when they will be implemented.
Lord Addington (LD)
My Lords, my eye was drawn to this debate because it is about taking money from benefits. As the noble Lord, Lord Wei, said, people on benefits do not have a great deal of spare money and every time we look at justifiable benefit reductions, we must consider what happens to that person and, more importantly, their family.
It is accepted that economic pressure tends to make certain groups consider criminal activity more frequently, especially those who come from an environment that is used to criminal activity. Increasing economic pressure on those people can lead to them taking that option. Anyone who has worked in any part of the criminal justice system has had people tell them that. They say, “I don’t know what to do. I’ve got no money and a way to make money was presented to me. It was illegal, but I took it”. Whether in the grey or black economy, it does not matter.
Having said that, we must remember the principle that if you assault a policeman, a member of the health service or a fireman you are not only breaking the law but attacking someone who is trying to make society a better place. So, what is the balancing act here? Are we considering it properly? If we do not get this right, we may well create more problems for those in the emergency services than we are solving.
The restitution fund is a wonderful idea, but the sums involved are comparatively small. I hope that we can be assured that the fund will not collapse if this action is not taken and no benefits money is transferred into it. We are not talking about raising big sums, in terms of government expenditure. What will happen to that fund? Will it continue? Will there be an impact assessment? As has already been pointed out by the noble Lord, Lord Foulkes, there does not seem to be any mandatory impact assessment. We must look at that.
The principle sounds great, but what about the practice? What is happening? Are we ensuring that we are making the situation better and not doing that wonderful thing of marching forward with good intentions and ending up at the back door of hell? We must look at how this works and the impact on the group in question.
Lord Naseby (Con)
My Lords, I have been looking at victim legislation in England, which is what drew me to this particular SI. I am totally mystified as to why it has taken seven years to implement what everybody is saying is a very important aid to the police. A member of my extended family is in the fire service, which I assume this order also covers. Of course, there are far fewer assaults on fire officers, but they do happen, so it seems just as valid to include the fire service as the police. Also, the Explanatory Note says that the restitution order is “currently set at £10,000”. But that was set seven years ago. The implication is that the amount will be increased. Perhaps the Minister can clarify that.
Secondly, there is nothing in the Explanatory Note about what happens if a person appeals. Is the deduction of benefits then suspended? Others have rightly said—and I totally concur, having once been the leader of the London Borough of Islington, a poor part of London—that with people on benefits, it is always the family who suffer. The mother, who is probably looking after half a dozen children, is the one who suffers.
Finally—I am grateful to the noble Baroness who raised this—the last paragraph of the Explanatory Note states:
“An impact assessment has not been produced for this instrument.”
As the law was produced seven years ago, there must be some impact. I am amazed that we are to go forward on something for which there has been no impact assessment. A number of questions have been asked by noble Lords, and I shall not repeat them, but this is not quite as straightforward as it appears on the one sheet of paper taken up by the SI.
Baroness Barker (LD)
My Lords, I declare an interest as I know people who have used the services of St Andrews in Harrogate and my noble friend Lady Harris of Richmond is president of that institution. It provides specialist physical and mental health support to police officers. It is uniquely valuable because the treatment may be the same as treatment obtained elsewhere, but the therapists understand the conditions under which police officers sustained their injuries, which is very important.
A lot of speakers have talked about the perils that police officers face at the moment because the Covid legislation has been badly communicated by the Government and ignored by the Prime Minister’s adviser, which has led to tensions for understandable reasons. Police officers never know when they go on duty whether a person or situation might suddenly blow up and get out of hand. It is therefore important that we see this order as something that applies generally throughout policing. I am glad that we are discussing it today because ongoing scrutiny of government is important, even on matters such as this where there is a fair degree of agreement.
This order is made as a consequence of the Victims and Witnesses Act (Scotland) 2014 and was requested by the Scottish Government. The Act was passed seven years ago. Why has it taken so long? What was the hold up and who was responsible? I ask because my Scottish Liberal Democrat colleagues Alison McInnes and Liam McArthur at Holyrood have been asking this question consistently since the Act was passed. Each time they were assured that preparatory work was ongoing, yet this legislation has yet to go before the Scottish Parliament. The Minister said in his introduction that the statutory instrument would be debated by the Scottish Parliament after the Summer Recess. Can he tell us when we can reasonably expect the first restitution orders under this legislation to come about?
How many incidents involving the abuse of police officers and civilian staff, who may, for example, be working in custody suites—this applies to them, too—would have been subject to this order had it been in force at any point over the past seven years? The orders might go some way to acting as a deterrent, but we need to know how many officers would have benefited from additional support had it been imposed. Where exactly will the money raised by the order go? Do we know how much restitution orders are estimated to raise every year? Can we potentially establish how much money police support services have missed out on and how much they can expect to obtain in coming years?
Noble Lords have made the point that it is up to the court and the DWP to exercise judgment in these matters and that they may decide not to levy a fine or to impose a restitution order if to do so would be injurious to the circumstances of the person or their family. Offenders can appeal against the imposition of a restitution order or the amount imposed, or to the DWP if they feel they cannot make the payment. How would they do that? Are they able to do so without having to seek further public funds to exercise that right?
My noble friend Lady Northover said that an impact assessment has not been provided for this instrument, and indeed it has not, so it is therefore difficult to gauge the administrative cost of implementing this order. On what basis—
Baroness Bloomfield of Hinton Waldrist (Con)
May I remind the noble Baroness of the speaking time limit?
Lord Bruce of Bennachie (LD)
My Lords, like other noble Lords, I am happy to welcome this instrument, although I echo the call for there to be Ministers for Scotland and Northern Ireland in the Lords. I mean no disrespect to the Minister, who gave an excellent introduction to this instrument.
As many noble Lords have said, the instrument focuses on assault of a police officer, who is in the front line on behalf of all of us. Any such assault is of course a serious offence. The consequences for that officer can be traumatic and long-lasting, as colleagues of those who have suffered will know. That is one reason why fellow officers have raised funds to support the rehabilitation of victims at home or at facilities such as those in Auchterarder or Harrogate. My noble friend Lady Barker gave us personal testimony about knowing people who have been there. The penalties for being convicted of such assault are rightly wide-ranging and include custodial sentences and fines. It is only right that those convicted of inflicting injury or trauma by such assaults should not only receive punishment but contribute towards the cost of their victim’s recovery.
The purpose of today’s business is to follow through the 2014 legislation to enable the courts to order recovery of funds from a convicted person’s benefits to be paid into a restitution fund to be administered by or on behalf of the Scottish Government. Circumstances vary according to where the victim resides. The assault may have been carried out by someone visiting Scotland who subsequently returned to another location in England or Wales, or it might have been carried out by a Scottish resident who subsequently moved to England or Wales. By passing this instrument, we ensure that recovery from benefits of restitution funds, if required, can be made anywhere in Great Britain. However, will the Minister explain why Northern Ireland is not included in this?
It is important that the sanction is not applied in such a way as to damage the convicted person’s family or lead to sanctions being imposed. This was highlighted by a number of noble Lords, notably my noble friend Lady Northover in the context of women, and my noble friend Lord Addington. Having said that, someone who has committed an assault should not be exempt from making a contribution to the restitution fund just because they are on benefits, although, as the noble and learned Lord, Lord Hope, reminded us, the £10,000 maximum would surely be well beyond anything that could reasonably be imposed on somebody claiming benefits.
As many noble Lords have pointed out, it is simply not clear why it has taken so long for this SI to be requested since the original law was enacted by the Scottish Parliament in 2014. Indeed, Kenny MacAskill, who introduced the original legislation as responsible Minister in the Scottish Government and is now an MP, said during the debate in the other place that he does not know the reason for the delay. It has been pointed out by the noble Lord, Lord McConnell, and my noble friend Lord Campbell that delay could have led to the loss of significant potential revenue that could have gone into the restitution fund.
I delicately venture that perhaps the bumpy ride that has characterised the creation of Police Scotland might have contributed to that delay. Alone of the parties in the Scottish Parliament, Scottish Liberal Democrats opposed the merger of the previous eight police forces into one. It was ill thought through and badly executed, and many experienced and dedicated officers left the force in considerable disillusionment. There were serious misjudged consequences, such as the appearance of mounted police at Highland Football League matches, a dramatic increase in stop and search, including of children, and increased carrying of firearms by police. In addition, the command of the force was controversial, to say the least. There were suspicions of political interference and the accountability mechanism has still not been settled satisfactorily.
All this has led to a loss of trust, a dramatic reduction in community engagement and often remoteness of understanding of different characteristics of policing in different parts of the country. I do not for a minute suggest that there is ever justification for assault on police officers, but I ask for consideration of whether the scale of the ongoing disruption might have led to some breakdown of trust and engagement, which may in some circumstances have increased tensions.
As many noble Lords have acknowledged, regardless of these difficulties there are dedicated police officers right across Scotland delivering protection and guidance with dedication and professionalism every day, and we owe them our gratitude and support, especially if they suffer in the line of duty. They have been under special pressure in recent months. I think it was the noble Lord, Lord Foulkes, who said that they have experienced more than 100 assaults. That is shocking and I think we all want to thank them for what they do and appreciate that they are doing it on behalf of all of us.
Having said that, I am more than pleased to support the useful step this SI represents in providing resources for restitution and in making a connection between the perpetrator and the victim, an assaulted police officer, in the form of restorative justice. It may not be more than a small contribution. The ability of benefit claimants to pay is a live issue. Nevertheless it is worth recording that there should be a connection between a crime and its consequences, and it is always good for a person who has committed a crime to know that they have a responsibility to the victims of their actions.
Lord Davidson of Glen Clova (Lab)
My Lords, I thank the Minister for introducing the order. Like the previous modification order of the 2014 Act, which came before the House in 2019, this order is certainly laconic. The effective language amounts to some 38 words. None the less it is of significance to police officers and staff in Scotland, to whom the benefits are directed. We support the order in both its terms and its intent. As the Minister observes, it provides, in the form of restitution orders, welcome additional support to those who, in the course of their duties, are at very real risk of assault and injury.
The Minister has eloquently described the recent circumstances confronting the police in Scotland. They have been tested by these changed circumstances, and have met the test. I am gratified to hear that the police in Wales have also met the test produced by these circumstances, as the noble Baroness, Lady Wilcox, pointed out.
My puzzlement that this order has taken so long to come before the House is shared by the noble Lords, Lord McConnell, Lord Campbell and Lord Naseby, and the noble Baroness, Lady Barker. It may be of interest to recall how this has come about. Like the allied order that provides for the victim surcharge scheme, this desirable innovation for Scotland was announced by the Scottish Government way back in 2013, and, as with the victim surcharge scheme, there has been a delay of years—seven years, as has been pointed out—in the introduction of restitution orders in cases of police assault.
I understand that the responsibility to notify the need for both orders lay with the Scottish Government. The noble Lord, Lord Foulkes, explained that in the past fairly useful meetings between Her Majesty’s Government and the Scottish Government had taken place. I assume that these meetings did not place in this case, or this problem would have been identified.
In introducing the 2014 Bill on 6 February 2013, the then Scottish Cabinet Secretary for Justice described these police restitution orders as “key proposals”, which were
“vital to improving the experience of victims and witnesses”.
The initiative to introduce such orders received praise internationally from police unions. A restitution fund was to be set up and administered by the Scottish Government. The fund was declared in the Scottish Government’s policy memorandum to be intended to
“support and promote the physical and mental health and wellbeing of police officers and staff”.
No one would dispute the laudable objectives thus set out, but—as every other speaker on this matter has asked—why has it taken seven years to introduce the necessary legislation for this vital, “key” initiative to promote the health and well-being of police officers and staff in Scotland? From what the Minister has said, I gather that the restitution fund has not been set up. The noble Baroness, Lady Barker, pointed out that such a fund would make a real difference, and identified the real value that it could produce.
I recognise that the Minister is not responsible for this delay; nor are, I assume, Her Majesty’s Government. None the less, is he aware of any reason for this remarkable delay? Did the Scottish Government have second thoughts about their initiative? That seems unlikely, given the laudable aims and the process of consultation that had taken place before the Bill was introduced. Were they concerned that an additional penalty visited on persons might be impecunious? I thought this unlikely, given that the penalty would have been imposed by the court, which, one might think, is well able to assess affordability.
As the noble and learned Lord, Lord Hope, and the noble Lords, Lord Wei and Lord Addington, identified, other questions arise as to how the orders might be imposed. The noble Baroness, Lady Northover, and the noble Lord, Lord Naseby, raised the important point about why no impact assessment was carried out. I would be interested to hear the answer to that.
Could the reason for this apparently mysterious delay simply be that the Scottish Government forgot, or somehow lost interest in, this initiative? That seems a remarkable notion. In any event, can the Minister enlighten the House? I take it that he agrees that any Government who overpromise and underdeliver risk both creating an impression of incompetence and losing the people’s trust.
Viscount Younger of Leckie
I thank all noble Lords who have taken part in this short debate. Many questions were put and I will do my best to answer them. Many Peers, including the noble Lords, Lord Bruce and Lord McConnell, my noble friend Lord Wei and the noble and learned Lord, Lord Hope, spoke about the role of the police, and the fact that they are currently having to tackle some unprecedented issues. I am very aware of the public issues that arose over Durdle Door, which admittedly is several hundred miles from Scotland. Here we are, however, talking about the Scottish police. I make clear, as I did in my opening remarks, that the Scottish police play a very important role and are doing it wonderfully.
I will answer directly a question raised by the noble Lord, Lord Campbell of Pittenweem: whether this restitution order was a penalty or a means of raising income. I think that he thought it might be neither; I absolutely confirm that it is a penalty. On the opposite side of the fence, I was interested to hear the eloquent speech by the noble Baroness, Lady Barker, with her knowledge of people who have been beneficiaries of these rehabilitation sentences.
Several key themes were raised in this short debate, and in a moment I will directly address the issue of the delays. The second theme was the impact on those served with a penalty. My noble friend Lord Wei spoke very sensibly about the fact that we do not want people to reoffend: there is a subtle balance here. This matter was also raised by the noble Lords, Lord Campbell, Lord Bruce and Lord Foulkes.
Finally, before my speech proper, I want to make a slight correction. I alluded to an MP in the other place. She is in fact the MP for North East Fife, not for Edinburgh West.
The question of the delays was understandably raised by the noble and learned Lord, Lord Davidson, the noble Lords, Lord McConnell and Lord Bruce, my noble friend Lord Naseby and the noble Baroness, Lady Barker. While this is a query for the Scottish Government, I am aware that the initial work to set up the victim surcharge module proved more complex than initially anticipated, which had a knock-on effect on the implementation of the restitution orders. The UK Government received the full policy proposal at the end of May 2019. Scotland Act orders take a minimum of one year from full policy proposal to complete, and often much longer. Despite the pressures of Covid-19 and Brexit over the past year, the UK Government have acted swiftly to deliver this order for Scotland in the quickest time possible, preventing any further delays in its implementation.
The Scottish Government plan to take forward their own SSIs following the summer recess. They expect the commencement of restitution orders by the end of the year. I reiterate, however, that these questions are more appropriate for the Scottish Government to answer.
Several noble Lords asked about affordability and how the system will work. The noble Lord, Lord Foulkes, asked about safeguards, and the noble Lord, Lord Addington, and my noble friend Lord Wei spoke about the level of payments and concerns about financial deprivation. The majority of restitution orders are expected to be paid to the Scottish Courts and Tribunals Service—SCTS—by offenders from their income. Deduction from benefits is an exceptional situation rather than the norm. Courts must take account of the ability to pay when deciding whether to impose a penalty, the amount of the penalty and whether to apply for a deduction from benefits order.
When the court writes to the DWP applying for the deduction from benefits order, it has to advise when the court inquired into the offender’s means. If an offender’s circumstances change, the restitution order can be remitted before the court that imposed it. Courts also have available to them non-financial penalties such as community service. Accordingly, sheriffs will have a role in determining whether an offender can afford to pay a restitution order or for deductions to be taken from their benefits.
The Section 104 order is to give the SCTS the capacity to deal with the exception rather than the norm. This capacity to enforce the penalty in these exceptional circumstances allows the penalty to be introduced with the same level of confidence and, importantly, the same safeguards as existing fines.
The amount of deductions will be decided solely by the DWP as part of its existing policy on deductions from benefits. These policies have caps in place to prevent undue hardship. In universal credit this cap is reducing further to 25% of a claimant’s standard allowance in October 2021. The cap was already reduced from 40% to 30% in October 2019.
The noble Lord, Lord Foulkes, asked about the numbers of police officers involved, but I think he will know that I addressed that in my opening speech. There were more than 400 crimes in which police employees were the victims, and over 100 cases had a Covid element.
The noble and learned Lord, Lord Davidson, asked about the restitution order already being set up by the Scottish Government. I reiterate that no restitution fund has yet been set up. The restitution fund has a statutory basis and the relevant statutory provisions have not yet been commenced. They will be commenced only once there is a full suite of enforcement measures for restitution orders, including deduction from benefits orders. As a result, the restitution fund cannot be set up, as there is currently no statutory basis on which to do so.
The noble Lord, Lord Foulkes, asked about reviews, which is understandable. No review process is required by the UK Government, as this order provides only for the restitution order to be regarded as a fine for the purposes of Section 24 of the Criminal Justice Act 1991. In addition, the Scottish Government will not undertake a bespoke statutory process for the ongoing review or monitoring of restitution orders, but it is expected that the Scottish Courts and Tribunals Service would monitor the collection rates for restitution orders in the same manner as it would for fines.
The noble Baroness, Lady Northover, asked about the disproportionate effect on women and raised some gender issues. Restitution orders are intended to replace fines for the same offence. The Scottish Government’s expectation is therefore that the financial impact on offenders will be unchanged. This is because the courts take into account the seriousness of the crime and the ability to pay when setting the level of fine or restitution order, and the pattern is expected to be the same. The key difference is that the money from restitution orders will go towards support for the victims of such assault. The Secretary of State for Work and Pensions applies the legislation relating to the recovery of fines via deductions from benefits even-handedly, on the basis solely of affordability and without regard to gender.
The noble Lord, Lord McConnell, asked whether the restitution order would be implemented without amending reserved legislation. I hope I can reassure him by saying that, while the order could function without the option of deducting sums from benefits, it is not considered a viable option by the Scottish Government. The Scottish Government have advised that there would be resource implications for the Scottish Courts and Tribunals Service if there is no ability to seek a deduction from benefits order. In 2018-19 the Scottish Courts and Tribunals Service reported that 3.4% of the total collected was received from benefit deduction. In addition, the noble Lord may like to know that there are practical difficulties in handling cases in which a restitution order and compensation order have been made and maybe a fine imposed. In such cases, Section 253C of the Criminal Procedure (Scotland) Act 1995 lays down the order of preference for payment of the orders and fines. This will be compromised if the restitution order cannot be recovered in the correct order of priority.
The noble Lord, Lord Foulkes, asked a pertinent question about the ability of the Department for Work and Pensions to cope. Will the recovery of the restitution orders create any extra work? In response to the pandemic, the department is accepting new applications for the recovery of fines only where either UC or employment and support allowance are in payment. The department will resume normal service as soon as it safely can. However, even in normal running the impact of the restitution orders on the department’s business is expected to be minimal, which I hope gives the noble Lord some reassurance. The department does not anticipate any increase in the overall volume of traffic or the individual amounts to be recovered in respect of Scottish fines, so the period over which recovery is made will be unchanged.
Another theme that emerged during the debate was an impact assessment. I am not sure I will necessarily satisfy all the points that the noble Baroness, Lady Northover, raised. The issue was also raised by the noble Baroness, Lady Barker, and the noble Lords, Lord Addington and Lord Foulkes. Orders made under the Scotland Act 1998 usually do not in themselves have a direct or indirect impact, whether benefit or cost, on business, charities or the voluntary sector, and would therefore not have any regulatory impact. This is the case with this order and is quite usual for constitutional measures. Implementing restitution orders is not expected to impact on business, charities or voluntary bodies. There is also expected to be no significant impact on the public sector. However, research undertaken ahead of the introduction of the victim surcharge in Scotland estimated a recurring annual cost of £115,000 on the Scottish Courts and Tribunals Service for collecting the victim surcharge, which included the cost of restitution orders. Only a small proportion of these costs is attributable to restitution orders, with the bulk attributable to the victim surcharge. Roughly 1%—that is, £1,150—is attributable to restitution orders.
My noble friend Lord Naseby asked about the appeals process. Claimants have a right of appeal to the Department for Work and Pensions if they feel there is insufficient benefit in payment for a deduction to be made. Additionally, however, the claimant can ask the Scottish Courts and Tribunals Service to make a private arrangement to repay the fine at any time, as DWP will make deductions only upon application by the service.
The noble Baroness, Lady Barker, asked a very succinct question about who the restitution fund will benefit. Eligible beneficiaries are persons who have been assaulted, as mentioned in Section 90(1) of the Police and Fire Reform (Scotland) Act 2012—so-called victims. This includes those acting in the capacity of a constable, a member of police staff, a member of other relevant police forces acting in Scotland or a member of a joint investigation team, or other persons assisting those noted above while acting in that capacity. The noble Baroness may like to know—it may not surprise her—that the most likely beneficiaries are front-line police officers and staff who interact with the public; for example, police officers who patrol our communities to keep us safe and respond to disturbances and reports of crime, and police staff who are in close proximity to those in custody, such as police custody and security officers, who provide for the care, welfare, security and escort of persons in custody.
The noble Baroness also asked what the cost has been to police officers who have missed out on six years of restitution orders being in place. This order highlights the two Governments’ strong partnership in working together, which I highlighted earlier. As I said, the Scotland Act orders take around 12 months to progress. However, the Scottish Government estimate that, once established, restitution orders will total around £87,500, and £175,000 a year. However, as one noble Lord alluded to, these levels will take some time to reach as the courts begin to use restitution orders and offenders begin to pay. We judge that over the first four years of implementation the value of these orders will therefore total less than £350,000.
The noble Lord, Lord Bruce of Bennachie, asked why this order does not extend to Northern Ireland. It amends Section 22 of the Criminal Justice Act 1991 and this section currently does not extend to Northern Ireland.
I hope that I have covered all the questions. I will undoubtedly want to read Hansard—I am sure noble Lords will too. To conclude, I hope that this instrument, which facilitates further support for police officers in Scotland, demonstrates that we are putting some weight behind this and that the Government are committed to working collaboratively with the Scottish Government to ensure a functioning settlement for Scotland despite the delays, the explanation for which I gave earlier.
On that basis, I beg to move.