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

Lord Duncan of Springbank Excerpts

Wednesday 26th June 2019 Lords Chamber

Moved by

[Lord Duncan of Springbank]

That the draft Order laid before the House on 16 May be approved.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

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.

[Lord Hope of Craighead (CB)]

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.

--- Later in debate ---

[Lord Davidson of Glen Clova (Lab)]

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.

[Lord Duncan of Springbank]

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.

[Lord Wallace of Tankerness]

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?

[Lord Duncan of Springbank]

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.