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

Edward Argar Excerpts

Wednesday 26th June 2019 General Committees

[The Parliamentary Under-Secretary of State for Justice (Edward Argar)]

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.

--- Later in debate ---

[Edward Argar]

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.

[Mr Sweeney]

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.

[Edward Argar]

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.