Victims and Witnesses (Scotland) Act 2014 (Consequential Modification) Order 2020

Viscount Younger of Leckie Excerpts

Wednesday 3rd June 2020 Lords Chamber

Moved by

[Viscount Younger of Leckie]

To move that the Virtual Proceedings do consider the draft Victims and Witnesses (Scotland) Act 2014 (Consequential Modification) Order 2020.

The Motion was considered in a Virtual Proceeding via video call.

[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.

--- Later in debate ---

[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.

Motion agreed.