Scottish Parliament, 30 June 2010

403 contributions from 53 members. The official report.

Time for Reflection

Alex Fergusson (None, Galloway and Upper Nithsdale)

Good morning. The first item of business this morning is time for reflection. Our time for reflection leader is the Rev Dr Angus Kerr, clerk of the presbytery of Glasgow, Church of Scotland.

Business Motions

Alex Fergusson (None, Galloway and Upper Nithsdale)

The next item of business is consideration of business motion S3M-6671, in the name of Bruce Crawford, on behalf of the Parliamentary Bureau, setting out a revised time for decision time today.

Bruce Crawford (Scottish National Party, Stirling)

In moving the motion, I should explain to members that the purpose of moving decision time to half past 5 is to allow for a statement on the gathering.

I move,

That the Parliament agrees under Rule 11.2.4 of Standing Orders that Decision Time on Wednesday 30 June 2010 shall begin at 5.30 pm.

Motion agreed to.

Alex Fergusson (None, Galloway and Upper Nithsdale)

The next item of business is consideration of business motion S3M-6672, in the name of Bruce Crawford, on behalf of the Parliamentary Bureau, setting out revisions to the business programme for this week.

Motion moved,

That the Parliament agrees—

(a) the following revision to the programme of business for Wednesday 30 June 2010—

delete

followed by Business Motion

followed by Parliamentary Bureau Motions

5.00 pm Decision Time

followed by Members’ Business – S3M-6377 Aileen Campbell: Perspectives of Children and Young People with a Parent in Prison

and insert

followed by Ministerial Statement: The Gathering

followed by Business Motion

followed by Parliamentary Bureau Motions

5.30 pm Decision Time

followed by Members’ Business – S3M-6377 Aileen Campbell: Perspectives of Children and Young People with a Parent in Prison

and (b) the following revision to the programme of business for Thursday 1 July 2010—

delete

2.55 pm Finance Committee Debate: Budget Strategy Phase Report

and insert

2.55 pm Continuation of Stage 3 Proceedings: Crofting Reform (Scotland) Bill

followed by Finance Committee Debate: Budget Strategy Phase Report—[Bruce Crawford.]

Motion agreed to.

The next item of business is consideration of business motion S3M-6673, in the name of Bruce Crawford, on behalf of the Parliamentary Bureau, setting out a timetable for stage 3 consideration of the Criminal Justice and Licensing (Scotland) Bill.

Motion moved,

That the Parliament agrees that, during Stage 3 of the Criminal Justice and Licensing (Scotland) Bill—

(a) debate on the groups of amendments specified below in relation to the morning and afternoon shall, subject to Rule 9.8.4A, be brought to a conclusion by the time limits indicated;

(b) each time limit specified in relation to the morning shall be calculated from the beginning of proceedings in the morning and each time limit specified in relation to the afternoon shall be calculated from the beginning of proceedings in the afternoon; and

(c) all time limits shall exclude any period when other business is under consideration or when a meeting of the Parliament is suspended (other than a suspension following the first division in each of the morning and the afternoon being called) or otherwise not in progress:

Morning

Groups 1 to 6: 45 minutes

Groups 7 and 8: 1 hour 35 minutes

Group 9: 2 hours 20 minutes

Groups 10 to 12: 3 hours 10 minutes

Groups 13 to 16: 3 hours 40 minutes

Afternoon

Groups 17 to 19: 10 minutes

Groups 20 to 23: 40 minutes

Groups 24 to 27: 1 hour 10 minutes

Groups 28 to 32: 1 hour 30 minutes.

followed by Stage 3 Proceedings: Criminal Justice and Licensing (Scotland) Bill—[Bruce Crawford.]

Motion agreed to.

Criminal Justice and Licensing (Scotland) Bill: Stage 3

Alex Fergusson (None, Galloway and Upper Nithsdale)

The next item of business is stage 3 proceedings on the Criminal Justice and Licensing (Scotland) Bill. In dealing with amendments, members should have the bill as amended at stage 2, which is SP bill 24A, the marshalled list, which is SP bill 24A-ML, the correction slip to the marshalled list, and the groupings, which I, as Presiding Officer, have agreed.

The division bell will sound and proceedings will be suspended for five minutes for the first division this morning. The voting period for the first division will be 30 seconds. Thereafter, the voting period will be one minute for the first division after a debate and 30 seconds for all other divisions.

Bill Kidd (Scottish National Party, Glasgow)

On a point of order, Presiding Officer. In light of the statement by the Lord Chancellor that was reported in The Daily Telegraph today, have you been made aware whether there will be a forthcoming statement from Westminster on his ideas on prisons and sentencing? [Interruption.]

Alex Fergusson (None, Galloway and Upper Nithsdale)

Order. Mr Kidd, that is—

Bill Kidd (Scottish National Party, Glasgow)

We had no idea that the respect agenda extended to the Scottish Government’s proposals on short sentences.

Alex Fergusson (None, Galloway and Upper Nithsdale)

That is not a point of order for me, Mr Kidd.

Section 12—Business plan

Group 1 is on the Scottish sentencing council. Amendment 8, in the name of Robert Brown, is grouped with amendments 171 and 172.

Robert Brown (Liberal Democrat, Glasgow)

It is good to begin with a bit of light amusement in what I think will be a long day.

It is my privilege to speak to the first amendment that we must consider during stage 3 proceedings on the bill. [Interruption.]

Alex Fergusson (None, Galloway and Upper Nithsdale)

Order. There is far too much noise in the chamber.

Robert Brown (Liberal Democrat, Glasgow)

I am grateful to the Government for accepting that the Scottish sentencing council should be an advisory body that prepares sentencing guidelines for the approval of the High Court. Amendment 8 is really a carry-over amendment that provides that the Lord Justice General should be consulted on the sentencing council’s business plan. As the court has to approve the eventual outcome of the work, it seems only sensible that the head of the judiciary should have the opportunity to provide input into the work plan as of right. That may well happen in practice, but the bill should say so.

I turn to Stewart Maxwell’s amendments 171 and 172. I am fairly relaxed about the judicial and legal balance on an advisory sentencing council, but it seems to me that the original idea that the Justice Committee approved—of having both a justice of the peace and a stipendiary magistrate on the council—was sound. Therefore, I am inclined to reject amendment 171.

I am also fairly relaxed about amendment 172, which would take away the Lord Justice General’s block on the appointment of lay members of the council and reduce that to a right to be consulted. It may be a legitimate policy matter for the Government to determine the type of lay members who are needed. I am inclined to support amendment 172, but I will listen to the arguments on it.

I move amendment 8.

Alex Fergusson (None, Galloway and Upper Nithsdale)

I commend Robert Brown’s brevity and suggest that other members are similarly brief, as we have a lot to get through today.

Stewart Maxwell (Scottish National Party, West of Scotland)

During stage 2 consideration of the bill’s provisions on the Scottish sentencing council, the Justice Committee was clear that there were concerns about the influence of sentencing guidelines on judicial discretion and about how the sentencing council would function alongside the High Court. In its stage 1 report, the Justice Committee suggested that there were a number of options to address those concerns, including recasting the council as an advisory body or creating a judicial majority in its membership.

In light of that, and in line with the Justice Committee’s recommendations, the Government lodged amendments at stage 2 that recast the council as an advisory body that would prepare sentencing guidelines for endorsement by the High Court. The committee agreed to those amendments.

However, the cumulative result of several other amendments relating to the make-up of the council was that the balance of the membership was altered, to stand at six judicial members and six non-judicial members. Given the changes that have been made to the status of the council and the role that the High Court will play in the final sign-off of draft guidelines, I believe that the council should have a membership with a small non-judicial majority.

It is central to the creation of the sentencing council that its work helps to deliver greater transparency and public confidence in our criminal justice system. The current format of a council with no lay-member majority that drafts guidelines for judicial approval does not represent a sufficient improvement on the status quo. I raised that issue in the Justice Committee.

Amendment 171 would provide that, after the Lord Justice Clerk, a High Court judge and a sheriff, one council member must be a justice of the peace or a stipendiary magistrate. The provisions are drafted to allow for the fifth and final judicial member to be drawn from the ranks of justices of the peace or stipendiary magistrates, should the Lord Justice General prefer, but they retain flexibility to allow that place to be filled by a sheriff, a sheriff principal or a High Court judge. I hope that that answers Robert Brown’s point—that flexibility will remain. The council’s judicial membership will reflect the breadth of judicial expertise and the non-judicial majority on the council will help to encourage greater clarity and openness in its sentencing.

Amendment 172 relates to the appointment of lay members of the council. Amendments at stage 2 created a requirement for the Scottish ministers to seek the approval of the Lord Justice General on the appointment of lay members of the council. However, the Lord Justice General is required only to consult the Scottish ministers on the appointment of the legal members of the council. I am not clear why there should be an imbalance in the procedures for the appointment of the members. The effect of amendment 172 would be that the Scottish ministers would have to consult the Lord Justice General on the appointment of lay members, rather than to seek the Lord Justice General’s approval of those lay members. I ask for support for that amendment, which would merely provide that the same approach that applies to the appointment of legal members would apply to the appointment of lay members.

Richard Baker (Labour, North East Scotland)

The Labour Party recognises the concerns that have existed for some time over consistency in sentencing. We hope that consistency will be aided by the establishment of a sentencing council, although the key issue today will be about Parliament setting an appropriate framework for sentencing. There are important issues about the independence of the courts.

If the sentencing council is to be effective, it is absolutely crucial that it has the confidence of the judiciary. It is essential to have balanced representation on the council if it is to improve public confidence in our system. That is why Stewart Maxwell’s amendment 171 is not necessary. I am aware that, in the Justice Committee, Mr Maxwell raised concerns about a possible imbalance on the council because of the existence of a judicial majority, but I do not see why that should weaken the council, particularly as the cabinet secretary has stated the clear intention that the council should act through consensus. The council will include lay membership and representatives of victims of crime, which is important. The judicial membership of the council is likely to benefit the council and help it work with the courts.

On the same basis, I do not consider amendment 172, on the appointment of lay members, to be necessary either.

Given that the Lord Justice General is responsible for matters such as appointment of the judicial members of the council, it seems logical that he should be consulted on the business plan. We therefore support Robert Brown’s amendment 8.

Bill Aitken (Conservative, Glasgow)

Robert Brown’s amendment 8 has validity. There might well be an argument that the amendment should be supported, given that the Judiciary and Courts (Scotland) Act 2008 makes the Lord Justice General responsible for the running of the courts.

Mr Maxwell’s amendments 171 and 172 are simply not acceptable. The Justice Committee took the view that there should be a judicial majority on the council. Stewart Maxwell’s amendments would change that. I adopt the arguments of Mr Baker. I have little doubt that the thinking behind the amendments is that the sentencing council would be packed with a liberal majority of the good and the great from Edinburgh, acting at the behest of the cabinet secretary. As such, we cannot support them.

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

Amendment 8 would require the Lord Justice General to be consulted on the sentencing council’s business plan. Nothing in the current provisions would prevent the Lord Justice General from being consulted on that but, for the sake of clarity, I note that we recognise the principle that lies behind Robert Brown’s amendment and are happy to support it. We believe that Scotland must have the appropriate framework in place to ensure fairness and justice in sentencing.

We are grateful to the Justice Committee for the time that it took to examine the matter in detail and we feel that the amendments that were made at stage 2 to the sentencing council provisions addressed the concerns that had been raised about judicial independence and the role of the council in existing criminal justice structures. The sentencing council will operate as an advisory body, with its guidelines being approved by the High Court.

In balancing the membership of the council, it is key that we ensure that it commands legitimacy in the eyes of both sentencers and the public. However, with the High Court’s role in giving the final approval to draft guidelines, we believe that it is even more important that the concerns of the wider criminal justice community and the public are represented at the drafting stage. We believe that it is key that the non-judicial members of the council have a sufficient voice at the drafting stage, in light of which we support Stewart Maxwell’s amendment 171.

Amendment 172 would ensure that the process for the appointment of the lay members of the council is the same as the process for the appointment of the legal members. We are not clear why there should be unequal requirements for the appointment of different members. All the members of the council will have equal status. It will not be a case of setting the legal and lay members against one another.

We envisage a collaborative approach to the drafting of guidelines and would like all the council members to be appointed on the same basis to assist in that process. We therefore support amendment 172.

Alex Fergusson (None, Galloway and Upper Nithsdale)

I call Robert Brown to wind up and indicate whether he will press or withdraw amendment 8.

Robert Brown (Liberal Democrat, Glasgow)

I will press amendment 8, which I think has support. I have only one comment to make in winding up, which is on Stewart Maxwell’s amendment 171. People are becoming a bit obsessed about majorities and minorities. There will be a substantial judicial presence and a substantial lay presence on the council, which is to be an advisory body. Therefore, where the majority lies does not matter too much. The most important thing is to have the wide range of judicial experience for which the current provisions provide. I ask members to reject amendment 171.

Amendment 8 agreed to.

Section 14—Community payback orders

Alex Fergusson (None, Galloway and Upper Nithsdale)

We come to group 2. Amendment 9, in the name of Robert Brown, is grouped with amendments 10 and 11.

Robert Brown (Liberal Democrat, Glasgow)

Amendments 9 to 11 relate to community payback orders. Amendment 9 seeks to insert a definition of the purpose of community payback orders into the bill. I am rather surprised that that has not been done already, because I believe that it would give greater clarity to one of the more important reforms in the bill. I have changed the wording of the amendment that I lodged at stage 2 to accommodate what, on reflection, I thought was a valid objection from the minister, which related to the fact that the convicted person’s addressing their offending behaviour was seen as part of the process of payback to the community for his or her misdeeds. The wording of amendment 9 reflects that more adequately. I hope that it appeals to the minister and to the Parliament. I do not think that the purpose of the provision is academic. On the contrary, I think that what I am suggesting would give definition to the purpose and a clearer instruction to the court as to the policy intention, which in turn would help the court decide on the right balance of measures in an order.

Amendment 10 is intended to empower Scottish ministers to specify standards with which CPOs must comply. The powers are helpful and necessary. The whole area is bedevilled by the fact that provision, speed of commencement and completion of orders and, above all, their effectiveness, tend to be fairly patchy across the country. At present, those given community orders have a reoffending rate of about 42 per cent within two years. That is certainly better than the reoffending rate for people coming out of prison of 74 per cent, but it is still not very good. If the reoffending rate, which I accept is only one measure of success, could be knocked down to, say, 30 per cent, there would be a significant hit on the revolving door syndrome and a considerable saving to the public purse, and many more people would cease to be a nuisance to the public. The Scottish Government has a part to play in supporting and requiring best practice in this area. These specific powers would be helpful to it.

Amendment 11 relates to a requirement on the Scottish Government to make an annual report to the Parliament on the success of community payback orders based on reports prepared by local authorities. In response to the minister’s comments, I have made amendment 11 less onerous than the one that I lodged at stage 2, but I believe that the requirement is still appropriate. It should be seen as an opportunity for local authorities to show the public the substantial public works done by offenders to pay back to communities for their crimes. The public must have confidence in our country’s penal regime, particularly if we move—as I believe that we should—to slash the number of short-term prison sentences. Information about what is happening locally and how it compares with the position elsewhere in the country is a central requirement of democratic support for CPOs. A duty would be imposed on councils, but it is a vital duty that should work with the grain of what they are doing anyway, and it should not impose a significant cost. Councils, the Government and the public need to know if CPOs are not working as well as they should.

I know that ministers are still opposed to amendments 9 and 11, which I will press. They collect quite a bit of information already through social work and audit figures. Ministers will say that they already set standards, that they will tighten these things up in association with social work provision and that they will focus specifically on the causes of crime. If the minister says such helpful things, I will be prepared not to move amendment 10.

I move amendment 9.

James Kelly (Labour, Glasgow Rutherglen)

I reiterate our support for community payback orders, which in some instances will be more appropriate than prison sentences. It is important that the public have confidence in the orders, so they must be transparent—the public must see clear start and finish times. It is also important that the orders are funded correctly.

I support Robert Brown’s amendments 9 to 11. It is correct to set out the purpose of community payback orders, as amendment 9 does, and the standards, as amendment 10 does. That is essential to ensure consistency throughout the country.

On amendment 11, an annual report to the Parliament is crucial. As Robert Brown said, that would help local authorities. It would also be important for forecasting the financial requirements of community payback orders. As I suggested, that will be essential if the orders are to succeed and if the public’s support for them is to be maintained.

Bill Aitken (Conservative, Glasgow)

We will return repeatedly to public confidence in today’s proceedings. Robert Brown’s amendment 11 has merit. The consensus in the Parliament is that, sometimes, we do not revisit legislation to assess its effectiveness. What Robert Brown suggests is some way short of doing that, but there is merit in going down that line.

Amendments 9 and 10 are similar to amendments that Robert Brown lodged at stage 2. I am not persuaded of a great necessity for them—my view on that has not changed.

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

Amendment 9 would define the purpose of a community payback order as to pay back to the community that was affected by the offending behaviour and to support the offender in addressing the underlying causes of his or her offending. We understand and support the intention behind the amendment, but we continue to have reservations about it.

In our response to the Justice Committee’s stage 1 report, we made it clear that the name “community payback order” is based on the wider definition of payback that is assumed in the Scottish Prisons Commission’s report. Every requirement that a court can impose in a community payback order is designed to pay back to the community through unpaid work or by addressing offending behaviour and its causes. Therefore, every community payback order—whatever requirements it contains—will meet the purposes that Robert Brown’s amendment describes. The extra text that would be inserted by the amendment is not needed to achieve that.

We are concerned about the drafting of amendment 9, which requires that the offender

“pay back to the community adversely affected by the conduct of the offender”.

That implies—perhaps unintentionally—that every community payback order must provide payback to the community in which the offence was committed and could give rise to several problems. An offender might commit an offence in an area other than that in which he or she lives. If they had to travel a considerable distance to comply with the requirement, the time to complete the order could well overrun and difficulties could arise with social workers’ responsibilities to supervise offenders. Requests for transfers to another local authority area, which are allowed for in other community sentences, might become more difficult if the court had to take account of a need for the offender to pay back to the community that had been adversely affected. For all those reasons, we resist amendment 9.

Amendment 10 proposes new section 227VB of the Criminal Procedure (Scotland) Act 1995, which would provide for the Scottish ministers to specify in a statutory instrument standards of compliance for community payback orders. Ministers already specify standards for the operation of community sentences. Work is well under way to revise the national outcomes and standards for criminal justice social work, which will be published later this year.

I know that Robert Brown is interested in the standards, so I will say that they are being revised in consultation with the Association of Directors of Social Work and will include comprehensive guidance on community payback orders, including guidance on the immediacy and frequency of a social worker’s contact with an offender and on the level and intensity of supervision. The standards will underline the fact that, for example, unpaid work placements should begin within seven days of sentencing. They will also make it clear that the interventions of criminal justice social work services, through all the requirements of a community payback order, should be designed to support effectively the individual’s efforts to desist from offending. In addition to those non-statutory standards, powers are already in the bill to make rules in connection with the undertaking of unpaid work. Those are contained in new section 227O(2A) of the 1995 act.

Unfortunately, the requirements that amendment 10 proposes are so broad, ill-defined and unclear about who they bind as to be unworkable. For example, under paragraph 2(a) in the amendment, who is responsible for ensuring prompt delivery of community payback orders?

Alex Fergusson (None, Galloway and Upper Nithsdale)

I must hurry you, minister.

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

Under paragraph 2(b), it is not clear how matters would be set out. Further, there are no principles or purposes.

Amendment 11 imposes reporting requirements. We already have matters on which local authorities and Government report. Our position is that the amendment is unnecessary. Indeed, these matters can already be brought back to the chamber and the Parliament.

I invite Robert Brown to withdraw amendment 9.

Robert Brown (Liberal Democrat, Glasgow)

I am grateful to the minister for his response, particularly on amendment 10. I largely accept what he says about what is happening in that regard and in terms of the purpose and intent of the Government. I welcome the good work that is being done to improve the standards of CPOs. However, I reiterate the point: my aim—and, I hope, that of the chamber—is to make a big success of community payback orders. We need to spread good practice that is based on what works and to jam the revolving door of repeat offending. I am particularly keen on work that is focused on addressing the causes of crime.

Given the minister’s assurances, I am prepared not to move amendment 10. I will, however, press amendment 9 and will move amendment 11. My only point on amendment 9 is on the community aspect, which the minister slightly overstated. The amendment is at a generalised intention level; the detail is in the rest of the bill. The purpose of CPOs is central, but perhaps more important is the need for local authorities to make an annual report to their communities and for the Scottish Government to make such a report to Parliament. Those reports will be absolutely essential if we are to boost understanding of the orders and ensure their effectiveness. In addition, they would give the Parliament the materials to allow it to keep a close eye on progress. I press amendment 9.

Alex Fergusson (None, Galloway and Upper Nithsdale)

The question is, that amendment 9 be agreed to. Are we agreed?

Members: No.

There will be a division. As it is the first division, proceedings will be suspended for five minutes.

09:42 Meeting suspended.

09:47 On resuming—

We will proceed with the division.

Alex Fergusson (None, Galloway and Upper Nithsdale)

The result of the division is: For 62, Against 64, Abstentions 0.

Amendment 9 disagreed to.

Group 3 is on community payback orders—offences punishable by a fine. Amendment 33, in the name of the cabinet secretary, is grouped with amendments 34 and 35.

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

Amendments 33 to 35 clarify the court’s powers in respect of making a CPO under proposed new section 227A(4) of the Criminal Procedure (Scotland) Act 1995, by providing that the court may make such an order only where the offender has been convicted of an offence that is punishable by a fine, or by a fine and imprisonment, and where the court has decided not to impose a custodial sentence or a CPO under proposed new section 227A(1). They also provide that the court may impose a CPO under the section instead of, or as well as, imposing a fine, and they clarify that the court may impose one or more of the listed requirements in such an order.

It is clear from the wording of proposed new section 227A(1), when it is read in context, that a CPO is meant to be a genuine alternative to prison. For the purposes of our separate amendment to create a presumption against short sentences, the court must take into account proposed new section 227A(1) as an alternative to imposing a short prison sentence. In effect that means that, where the court decides that a short prison sentence is the only option, it must first rule out a CPO as being inappropriate in the case.

I move amendment 33.

Amendment 33 agreed to.

Amendments 34 and 35 moved—[Kenny MacAskill]—and agreed to.

Alex Fergusson (None, Galloway and Upper Nithsdale)

We move on to group 4. Amendment 36, in the name of the cabinet secretary, is grouped with amendments 37 to 44, 47 to 53, 58 to 60 and 173 to 185.

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

The majority of the amendments in the group are minor or technical in nature and seek to provide consistency of language or greater clarity of meaning. They will not change the meaning of the provisions to which they relate.

The group also includes a number of consequential amendments. Some will simply repeal references to “probation”, as a consequence of the introduction of the CPO. The majority, however, will amend provisions in the Criminal Procedure (Scotland) Act 1995 that relate to appeals, and provide explicitly for an appeal against a sentence imposed for breaching a CPO.

I move amendment 36.

Amendment 36 agreed to.

Amendments 37 to 44 moved—[Kenny MacAskill]—and agreed to.

Alex Fergusson (None, Galloway and Upper Nithsdale)

We move on to group 5. Amendment 45, in the name of the cabinet secretary, is grouped with amendments 46 and 55 to 57.

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

In some sections of the bill that relate to CPOs, the provisions as drafted would limit the powers of the court in comparison with the provisions in the 1995 act that they are intended to replace. That is not the policy intention, so amendments 46 and 57 seek to rectify the position. The other amendments in the group are technical or will remove provisions that are to be replaced.

I move amendment 45.

Amendment 45 agreed to.

Amendments 46 to 50 moved—[Kenny MacAskill]—and agreed to.

Amendment 10 not moved.

Amendments 51 to 53 moved—[Kenny MacAskill]—and agreed to.

Alex Fergusson (None, Galloway and Upper Nithsdale)

We move on to group 6. Amendment 54, in the name of the cabinet secretary, is the only amendment in the group.

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

Amendment 54 provides for the court, following a request to move to another local authority area, to amend a CPO by removing or amending any specific requirement that cannot be supervised in the new local authority area, which might otherwise have prevented the order from being transferred.

I move amendment 54.

James Kelly (Labour, Glasgow Rutherglen)

I oppose amendment 54. First, an offender should comply with the CPO in the local authority area that is designated in the order. Secondly, amendment 54 will provide for a power to change or revoke an order, which might give an offender an incentive to move to a different local authority area to seek to get the order changed or revoked.

Bill Aitken (Conservative, Glasgow)

I cannot understand Mr Kelly’s argument. It seems to me that Mr Kelly’s blocking of amendment 54 could prevent a person from moving for a positive reason. For example, a CPO might be imposed in Glasgow, but the offender might move to Manchester for work reasons. Amendment 54 is justified and will plug a potential hole in the bill.

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

I understand where Mr Kelly is coming from, but I agree with Bill Aitken. Mr Kelly’s approach would work against people who were seeking to improve themselves. People must do the time for the offence that they have committed. However, if they move to get away from bad company, for example, it would be perverse to force them to go back to the area from which they had moved to try to break the cycle of reoffending.

What matters is that offenders do the hours of work that they are required to do because of the damage that they have done. It is their right and entitlement to move for whatever reason. However, they will have to do the time whether they do it in the community in which they first resided or one to which they move.

Alex Fergusson (None, Galloway and Upper Nithsdale)

The question is, that amendment 54 be agreed to. Are we agreed?

Members: No.

There will be a division.

Alex Fergusson (None, Galloway and Upper Nithsdale)

The result of the division is: For 81, Against 46, Abstentions 0.

Amendment 54 agreed to.

Amendments 55 to 60 moved—[Kenny MacAskill]—and agreed to.

Amendment 11 moved—[Robert Brown].

The question is, that amendment 11 be agreed to. Are we agreed?

Members: No.

There will be a division.

Alex Fergusson (None, Galloway and Upper Nithsdale)

The result of the division is: For 78, Against 48, Abstentions 0.

Amendment 11 agreed to.

After section 16

We come to group 7. Amendment 61, in the name of the cabinet secretary, is grouped with amendments 61A, 187, 12 and 62.

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

Amendment 61 will impose on courts a presumption against imposing custodial sentences of three months or less unless they consider that it is the only appropriate way of dealing with the offender.

The presumption against short custodial sentences has, of course, already been the subject of much debate; indeed we saw only yesterday support for the approach from none other than the Secretary of State for Justice south of the border, Ken Clarke. He is not alone because, last summer, in “Do Better Do Less: The report of the Commission on English Prisons Today”, the commission’s president, Cherie Booth QC, said:

“Scotland has taken a courageous lead in the UK by taking serious steps to address its prison crisis”

and that

“more widespread use of effective community sentences would both allow us to reduce the use of prison and allow for reinvestment of resources into local communities to cut offending.”

On Robert Brown’s amendment 61A, the Government shares his concern that the community payback order should be adequately funded, that its operation should be effective and properly monitored and that the long-term benefits arising from the new approach should be clearly demonstrated. We have already provided £9 million of extra resource to local authorities to improve the performance of the community service system and to prepare for the community payback order. I acknowledge the representations of Liberal Democrat MSPs to me on that issue.

Robert Brown will understand that at this stage in the budget cycle I cannot offer additional commitments on funding. I am, however, willing to commit the Government to ensuring that, as soon as possible after the bill is given royal assent, a community payback order working group, led by the Scottish Government and involving key justice stakeholders, will be established. The group will play a full part in the Scottish Government’s reducing reoffending programme. It will monitor preparation for the community payback order before it is brought into force and will, once it is in force, ensure that the kind of information that was mentioned by Robert Brown is regularly gathered and analysed. Those data and the group’s conclusions will be provided to ministers and to Parliament to help to inform future decisions, including decisions relating to funding for community sentences. I note in particular Robert Brown’s concern that the impact of the community payback order in reducing reoffending should be captured in the group’s work. I confirm that that will be the case.

Further, I would be happy to update the Justice Committee on the Scottish Government’s preparation for the community payback order, including the progress of the working group, prior to any court’s being able to make a community payback order and prior to implementation of the presumption against short sentences, should Parliament agree to that. I hope that reassures Robert Brown that the issues that he has identified will continue to be a focus of work as the community payback order is introduced and I hope, on that basis, that he feels able not to press his amendments.

Amendment 187, in the name of Patrick Harvie, seeks to replicate the Scottish Government’s original proposal to create a presumption against short sentences of six months or less. Although I am pleased that he supports the principle of the presumption that we brought forward when the bill was introduced in March 2009, we have been over this ground many times already. In the spirit of co-operation and of allowing Parliament to move on with a clear mandate, I call on Patrick Harvie not to move amendment 187, but instead to join us in taking a first step in the right direction by supporting the presumption against sentences of three months or less. We believe that the operation of the presumption will be effective and that evidence will be forthcoming to demonstrate that.

The Government’s amendment 61 creates a power for ministers to amend the period to which the presumption applies by secondary legislation—subject, of course, to the will of Parliament. That is the pragmatic way to move the matter forward and I call on Patrick Harvie to support it. If, however, he wishes to press amendment 187 to a vote, we will abstain.

Amendment 12 seeks to introduce a further reporting requirement, but its plan for a report five years from now and its broad remit means that it is not very useful to Parliament. I am sure that Parliament will want to hear regularly and in detail from ministers about the impact of the measures. Instead of waiting five years, we should be engaging now with all the stakeholders on getting and publishing regular performance information; indeed, we are the first Scottish Government to conduct an audit of performance information in the operation of community sentences. After stage 2, I offered to write to the Justice Committee setting out how we are doing that. I wrote to the convener in such terms on 3 June, and offered to meet members of the committee to discuss that work if that would be helpful. Amendment 12 is bureaucratic and will be unhelpful to Parliament. We resist it.

Amendment 62 seeks to ensure that the position of children who are detained following a conviction on indictment has the same safeguards as already exist for young offenders. By that, I mean that courts should be required to give their reasons for considering that a period of detention is the only appropriate disposal, and the court will be required to enter its reason for that decision in the record of proceedings.

We all share the desire to break the current situation on reoffending in Scotland, which damages many of our communities. The evidence is there: three quarters of people who are given short prison sentences will reoffend within two years, whereas three fifths of those who are given tough community payback orders do not reoffend. This is about making our communities safer. In a time of tight budgets, it is about ending the free-bed-and-board culture. I commend the views of Cherie Blair and Ken Clarke.

I move amendment 61.

Robert Brown (Liberal Democrat, Glasgow)

Short-term sentences do not work in the vast majority of cases. Throughout the passage of the bill, we—and other members who have positive contributions to make—have been trying to bring into place practical and effective arrangements to deal with the matter. I welcome the cabinet secretary’s conversion to the Liberal Democrat view, which we have expressed from the beginning, that at least initially the target should be short-term sentences of under three months, not six months. I have already commented on the importance of ensuring that CPOs are as effective as possible and that they have the confidence of the public.

The proposed power to amend the minimum period of imprisonment and, in the future, to substitute a period of, say, six months, is an approach with which the Liberal Democrats can agree. The proposal would enable matters to move forward when the time is right and with the agreement of Parliament, but without the need for fresh legislation. Amendment 61A, in my name, is intended to set down a clear marker of the things that need to be in place before such a reform could be activated. I am grateful to the minister for his positive and constructive approach to my amendment. We are all aware of the huge pressure on public funding at present, so I am also grateful for the minister’s response to my earlier representations to the effect that specific funding will be required to bring about an improvement in the effectiveness of the existing orders, which have had a demonstrable effect.

My aim throughout has been to produce a practical outcome that will work and that will maintain public confidence. The arrangements need to be able to deal with an increase in the number of orders and to respond to issues such as drug and alcohol addiction problems, literacy issues and mental health problems. The bill will have failed in its purpose if that does not happen.

In general terms, the motivation behind amendment 12 is to ensure that a report on the success of the reforms be laid before Parliament no later than five years after the act comes into force. We need to keep an eye on the issue without micromanaging the situation or drawing premature conclusions.

Ultimately, there are only two sides to this debate. On the one side are the doomsayers who see the end of the world as we know it if the proposed reforms pass. They seem to be incapable of acknowledging all the evidence that shows that prison rarely works to rehabilitate offenders. They see no significance in the fact that 91 per cent of detainees in HM Young Offenders Institution Polmont have been detained previously. They also disregard all the research evidence that points to illiteracy, drug and alcohol addiction, mental health problems and parental disaster areas as being the key risk factors that result in people ending up in jail. The Labour Party and the Conservative party members from whom we have heard today have been entirely negative in their responses to those issues.

On the other side are those of us who believe that there can be a system that is capable of reducing the human degradation and waste that results from short-term sentences. We believe that ending the revolving-door syndrome of repeat offending will better protect the public. The deal that we have in amendments 61 and 61A, following the bill’s consideration by the Justice Committee, is one that will stand and which is intellectually supportable. The proposed reforms will make a big difference to many people in Scotland, not least to the victims of crime. I have great pleasure in supporting the proposals.

I move amendment 61A.

Patrick Harvie (Green, Glasgow)

When I learned that the Government had reached an agreement with the Liberal Democrats on a compromise position and had lodged amendments to that effect, I was not dismayed. We were able to consider the issue in the stage 1 debate, but I feel that it is important that the whole Parliament should at stage 3—I did not have the opportunity to be involved in the Justice Committee’s in-depth consideration of all the options at stage 2—have the opportunity to debate and vote on the original proposal.

Ultimately, the question is about what prison is for or, at least, about what it is good for. There are those who will argue that prison is a punishment and that that is an end in itself. They will argue that prison provides a kind of satisfaction by ensuring that wrongdoers suffer because of the wrong that they have done. That position is taken regardless of the consequences, regardless of whether prison makes offenders more or less likely to reoffend and regardless, even, of whether prison provides an effective deterrent. Prison is good at one thing: providing walls for confinement. That is all that it is good at. [Interruption.]

If members will allow me, let me say that even many of those who work very hard to try to provide rehabilitation services—to tackle the education, literacy, mental health and addiction issues that Robert Brown mentioned—will admit privately that they are fighting a losing battle inside the prison walls because of the capacity and resource constraints that they face. Prison is not the best place to do that work.

A sentence of three, four or five months—the time that is actually spent in prison is probably even less than that—is not an adequate time in which to do anything substantial with some offenders.

If a person poses a genuine threat to society, putting them in prison for three or four months provides no real protection. It wastes the opportunity of confinement, the one thing that prison is good at. It abandons the opportunity to do more substantial things to prevent more victims from being created in the future, and to give someone the opportunity to turn their life around. That opportunity is best given outside prison for low-level offenders. When someone poses a genuine threat, prison is necessary, but I do not see how anyone can argue that short-term confinement of six months or less gives genuine protection to communities.

Alex Fergusson (None, Galloway and Upper Nithsdale)

A large number of members wish to speak. They will be able to do so if they stick to the times that I give them.

Richard Baker (Labour, North East Scotland)

We believe that the sentencing system in this country must focus on what best serves justice and public safety. The proposed presumption would not achieve those aims. It would apply not only to minor offences, as some members have sought to suggest, but to 38 per cent of convictions for assault and to almost one quarter of convictions for carrying a knife. Today, we seek to ensure that more of those who offend with knives go to jail, but the SNP and the Liberals want fewer of them to do so.

Of those who receive custodial sentences for domestic abuse, 68 per cent receive sentences of three months or less. In its evidence, Scottish Women’s Aid highlighted that the presumption could have a negative impact on people who are experiencing domestic abuse, and that organisation has written to us today to ask us to demonstrate our support for women, children and young people who are experiencing domestic abuse by maintaining the present position for our courts. That window of opportunity, which might be a month or two, can be crucial in such situations.

Of course, this time last week, the Scottish Government’s policy was exactly the same as Patrick Harvie’s, and he has had the integrity to bring that up. Today, we have a presumption for sentences of three months or less, with a provision to vary by statutory instrument. The Scottish Government had to revise the proposal the day before the close of lodging of amendments, which highlights its fundamental weakness, which is that it is unworkable, unfunded, and will put an intolerable burden on our community sentencing system. The Government has been forced to move to three months because that argument is overwhelming.

Even in endorsing the presumption for three months, the Liberal Democrats have lodged an amendment that suggests that it should not be brought into force until a report is compiled on the expected increase in community sentences and the cost implications, and the views of an appropriate committee have been taken into account. Surely all that should have been done before the Government sought to change the law in this way? The Liberal Democrats are seeking to close the door after the horse has bolted. It gives the lie to what we all know: the proposal has not been properly funded, it will create 7,000 more community sentences in a system that already too often cannot cope. Unfortunately one third of community sentences are already being breached at the moment.

Far from investment in organisations that have the expertise to ensure that community sentences are properly resourced being increased, budgets right across the country are being cut. The cabinet secretary has talked about budgets and finance, but his officials explained to the Finance Committee that the proposal will not produce savings in the prison estate because the infrastructure will need to be maintained.

The argument has been made again today that those who go to jail are more likely to reoffend. The unfortunate reality, which none of us likes, is that by the time an offender receives a custodial sentence, they will normally have received numerous different disposals for other offences. They are, by definition, repeat offenders by the time they get to jail. Of course, we need to do more to drive down reoffending, whether it be by custodial or community sentencing. We should also look to have more robust community sentences.

That is why the Parliament offered the opportunity for a pilot community court in Glasgow that would deliver fast and effective community justice. It was supported by everyone in the chamber, apart from the SNP, which now wants 7,000 more community sentences. Where is the logic or consistency in that? Today the SNP tells us that it wants thousands more sentences to be given, not through the provision of community courts but through this legislative presumption.

The proposal is not credible—it has unravelled before our eyes in the past week. Worse than that, it is not a responsible proposal. We are deeply concerned about its impact on our justice system and community safety, so we will oppose it.

John Lamont (Conservative, Roxburgh and Berwickshire)

Our prisons should serve four functions in society: they should protect the public, deter potential offenders, punish criminals and rehabilitate those who are inside. The most important of the four functions is the protection of the public from those who decide to commit crimes, closely followed by the need to rehabilitate criminals to ensure that we are addressing the underlying causes of their criminal behaviour and stopping the cycle of reoffending.

Short-term custodial sentences will always be a necessary part of our summary justice system. If an individual is a persistent offender or continuously breaches their community sentencing orders, the judiciary may feel that a short prison sentence is the best disposal to fit the circumstances. The possibility of a short prison sentence needs to remain an option that is available to the courts in dealing with some offenders.

The role of the Government should be not to restrict the courts’ ability to send people to prison, but to support the courts in their sentencing disposals and to ensure that adequate provisions exist to allow the disposals to be carried out. The courts must be allowed to retain their independence and they should be left in charge of sentencing. If the courts want to use short-term sentencing, Parliament should not prevent them from doing so.

It is perhaps true that short-term prison sentences do not achieve much by way of rehabilitation, but surely that means that we need to reconsider how we can use prison time more effectively to deal with rehabilitation, even if just for a few months. Just because there has been little success in rehabilitating some offenders during short sentences, there is no reason to abolish short-term prison sentences altogether.

Robert Brown (Liberal Democrat, Glasgow)

What does John Lamont make of the fact that a significant number of longer-term prisons are not getting rehabilitation because of a clog-up of short-term prisoners?

John Lamont (Conservative, Roxburgh and Berwickshire)

The need to understand the problems in our prisons and why rehabilitation is not happening is a problem that we all share and an issue that we all acknowledge across the Parliament, but abolishing short-term sentences is not the answer. It will simply make the situation worse. We need to make prisons better able to rehabilitate and to understand the underlying concerns of reoffending.

Fergus Ewing (Scottish National Party, Inverness East, Nairn and Lochaber)

Will John Lamont give way?

John Lamont (Conservative, Roxburgh and Berwickshire)

The power of Scotland’s courts to choose the length of prison sentences that are served by criminals should be maintained free from interference. That is the only way to protect our communities, and it should be the first step in the process of rehabilitation. For those reasons, we cannot support the amendments to create a presumption against short-term sentences, which will do nothing but extend the arm of the Scottish National Party’s soft-touch Scotland.

Fergus Ewing (Scottish National Party, Inverness East, Nairn and Lochaber)

I am interested—

Alex Fergusson (None, Galloway and Upper Nithsdale)

I think that the member has finished rather taken an intervention.

I call Stewart Maxwell.

Stewart Maxwell (Scottish National Party, West of Scotland)

I rise to support amendments 61 and 62 and to speak against amendments 61A and 12, basically because those two amendments are unnecessary and overly bureaucratic. The cabinet secretary dealt adequately with amendment 187.

Presiding Officer,

“just banging up more and more people for longer without actively seeking to change them is what you would expect of Victorian England ... It is virtually impossible to do anything productive with offenders on short sentences.”

That is a quotation from the Lord Chancellor, Ken Clarke. I am sorry that his party colleagues in the Scottish Parliament cannot understand that. At least Ken Clarke can.

John Lamont (Conservative, Roxburgh and Berwickshire)

Will the member give way?

Stewart Maxwell (Scottish National Party, West of Scotland)

I am sorry, but I do not have time.

Short sentences are ineffective. It is expensive to hold prisoners, the work involved in processing short-term prisoners is heavy in relation to the length of their sentences, and the time could be better spent on rehabilitation of long-term prisoners. The community can benefit from work that is carried out by someone who is on a work programme rather than in prison, and the offender may benefit from the experience of work and the skills that can be acquired.

It appears to be the policy of the Labour and Tory parties that, if they want to knock down a wall, they bang their heads against it for 100 years and, if that does not work, they keep on banging their heads against it. That is just ridiculous.

Let us listen to the evidence and the research. I have heard cries of, “Where’s the evidence? Where’s the research?” There are stacks of it. Professor Alec Spencer of the Scottish Consortium on Crime and Criminal Justice stated that

“the use of short-term and very short-term sentences is complete eye-wash. It has no effect at all on reducing crime.”—[Official Report, Justice Committee, 19 May 2009; c 1891.]

Let us listen to those who actually represent victims—because it is not the Labour Party that represents victims. I want to listen to David McKenna, the chief executive of Victim Support Scotland, who stated:

“Sending people to prison for short periods of time does nothing to help victims of crime and often results in more victims in the future. The time is right to end this revolving door.”

David Strang, the chief constable of Lothian and Borders Police, said that

“The evidence is that sending people to prison for a short time does little to reduce offending in the long-term. In fact there is an argument that it is likely to lead to increased offending”.

There is evidence that is piled higher than any wall that Labour members want to bang their heads against, but the fact is that they do not want to see that. The Parliament should support the amendments in the cabinet secretary’s name.

Richard Simpson (Labour, Mid Scotland and Fife)

There is a real problem with this debate, because the division between the parties is nothing like as great as people imagine. However, the solution that is offered in the Government’s proposal is wrong.

In 2001, when I was the Deputy Minister for Justice, there were 6,000 more admissions to prisons for short-term sentences. However, through the provision of robust alternatives such as drug treatment and testing orders and the time-out centre for women, we were able to reduce that number considerably. Robust alternatives will be used by the judiciary and the Labour Party will support that. What we will not support is a presumption that people such as me can be assaulted by drug dealers who will not then go to jail—that is wrong. When people who are involved in domestic violence are not removed from the situation to allow the family to readjust, in many cases that presumption is, frankly, wrong.

The main increase in our prison population is not in short-term prisoners; the big problem in our prisons is having to cope with prisoners on remand, whose number has increased by more than 6,000. There are now 24,000 admissions for remand as opposed to 18,000—and dropping—for short-term sentences. There is no proposal in the bill to tackle the fact that we are not dealing with remand. The Equal Opportunities Committee addressed that in its report and referred to Cath Smith of Glasgow City Council, who said that if we could bail just one woman, whether to the 218 centre or on bail supervision, instead of remanding her to Cornton Vale, it would be a huge achievement.

The Government’s proposal is the wrong proposal and it addresses the situation in the wrong way at the wrong time. Let us have robust community sentences that the judiciary will use, not this facile proposal.

Bill Aitken (Conservative, Glasgow)

As a young man from a poor area of Glasgow, I had many friends in low places and got to know the criminal mindset. [Laughter.]

Alex Fergusson (None, Galloway and Upper Nithsdale)

Order.

Bill Aitken (Conservative, Glasgow)

That impression was confirmed when I sat on the bench and has been reinforced by discussions with criminal lawyers in Glasgow. For a troublesome and small minority, prison is the only thing that will work. A situation has been created in Scotland in which many offenders do not pay their fines—indeed, on the evidence of the Sheriffs Association, the payment of fines now takes place on a more or less voluntary basis—therefore fines are not the answer.

The breach rate of social work orders in respect of compulsory work is disturbingly high, and social workers admit that, were they to be thorough in the application of such orders, as many as 75 per cent of the orders could technically be breached. Yet what is the cabinet secretary seeking to do? To remove the only possible alternative that is likely to impact on those offenders. If the new community payback orders are to work—we all profoundly want them to work—the removal of the possibility of a short-term custodial sentence for default or the removal of the ability to impress on offenders that any further offending will inevitably result in custody sends out a stupid message.

Fergus Ewing (Scottish National Party, Inverness East, Nairn and Lochaber)

Bill Aitken began by talking about friends in his earlier life. I want to ask him about one of his current friends, Kenneth Clarke. I ask Bill Aitken to respond on behalf of the Scottish Conservatives: was Ken Clarke right or wrong?

Bill Aitken (Conservative, Glasgow)

As a staunch upholder of devolution over the years, Mr Ewing will appreciate the fact that different approaches are required north and south of the border. If his proposals are agreed to today, for many people in Scotland that will send out the message to carry on thieving, disturbing the peace, shoplifting, subjecting people to fear and alarm and perpetuating the miscellany of petty crime that makes life a misery for so many people.

The Government’s proposals would profoundly damage Scotland’s society. I urge members to recognise that the Justice Committee got it right and that the existing provisions in the bill should be those that are agreed to today.

Angela Constance (Scottish National Party, Livingston)

I am pleased to have the opportunity to speak in favour of amendment 61. Given the fact that the Labour Party voted with the Tories to amend the original Government proposal and remove the presumption against sentences of six months or less from the bill at stage 2, it is entirely proper that Parliament now gets the opportunity to debate the principle of having a presumption against short-term sentences, albeit sentences of three months or less. If the Parliament is passionate about reducing crime and making communities safer, we must cast a cool eye over the evidence and decide dispassionately what works in punishing and changing offenders. All the evidence shows that short prison sentences do not work for low-level offenders. They are counterproductive and costly. We can no longer afford to have a misplaced confidence in prison.

I am surprised that members of the Labour Party think that it is entirely appropriate for those convicted of domestic violence to receive sentences of three months or less. If they were really concerned about the sentences that are given to wife beaters, they should not have voted for proposals to water down the sentencing council.

It is interesting that other European countries have walked away from imposing short sentences, other than in extraordinary circumstances. The prison population in Germany is 89 per 100,000, yet in Scotland it is 150 per 100,000. Is there something intrinsically more criminogenic about the Scots? I think not. I remind the chamber that the McLeish commission stated that political factors have more of an influence on high rates of imprisonment than the rates of crime do.

On short sentences, it is time for politicians to show leadership and courage instead of resorting to populist and primitive Old Testament views of justice. Goodness me, even Ken Clarke has seen the light. On 14 June, he told The Guardian:

“It’s not to be soft on sentencing, it’s to be sensible on sentencing”

and reminded us that it costs more to send a boy to prison than to Eton.

In its evidence to the Justice Committee, Victim Support Scotland said that what victims of crime want most is for offending to stop and for no one else to experience what they have experienced. That requires politicians to take their eyes off political expediency and tabloid headlines and have the courage to implement measures that will work in the long term.

Johann Lamont (Labour, Glasgow Pollok)

Stewart Maxwell said that we should not have a straw-man argument or debate positions that are not being put, and should instead reflect seriously on what people are saying in the chamber today. I am therefore surprised that Robert Brown chose to describe those who oppose the proposal as “doomsayers”. I do not think that we should call Scottish Women’s Aid doomsayers. I think that we should reflect on the fact that, over the years, women’s organisations have managed to persuade the legal establishment that the way that things are done does not work in the interests of victims.

The Scottish Government’s position is that short-term sentences do not work and that we should use community sentences instead. The logic of that position is that, if community sentences are put in place, short-term sentences will wither on the vine. However, what is being proposed is that the presumption against short-term sentences will be put in place, leaving victims—not the people in this Parliament—to face the risk that that approach will not work.

In the short time that I have, I will not appeal to the minister, as his complacency and arrogance are evident to us all. However, I will appeal to his back benchers, who listen to women’s organisations, to listen to what Women’s Aid has said. It believes that the criminal behaviour of perpetrators of domestic abuse does not fall into the category of people with chaotic lifestyles, for whom prison is a revolving door, that a presumption against the use of prison

“will only serve to increase the risks to safety for women, children and young people experiencing domestic abuse”

and will undermine the work that is done within the criminal justice system to address the issues of domestic abuse, and that

“It would be disastrous if the proposals were to foster an attitude amongst abusers that their behaviour was no longer being taken seriously in terms of sentencing”.

I know that there are people on the Scottish National Party back benches who are concerned about the issues of women, children and victims of domestic abuse. Do not allow this debate to be characterised as an academic theoretical debate between people who hold different views on prison sentencing. Listen to people on the ground who say that the Government’s proposal will put people at risk. If the Government wants to prove that short sentences do not work, it should put money into community payback and let short sentences wither on the vine; it should not do it in the way that is proposed, which is short-term political expediency dressed up as a strategy. Listen to the women’s organisations and oppose this proposal. The SNP listens to women’s organisations on some issues; it should listen to them on this one, too.

Dave Thompson (Scottish National Party, Highlands and Islands)

It is not only Cherie Blair and Ken Clarke who support a presumption against short sentences. We also have the Right Rev John Christie, the Moderator of the General Assembly of the Church of Scotland. I can do no better than quote the letter that he sent us yesterday:

“All the available evidence affirms that short periods of imprisonment do not work. They damage family relationships leaving 16,500 children separated from a parent; they separate offenders from their communities and they damage employment prospects.”

He went on to state:

“During a short period of imprisonment there is no time to provide rehabilitation to an offender. People receive short sentences for offences such as theft of a vehicle or breach of the peace; if a presumption against short sentences were to be introduced the change would not affect most violent offenders. Indeed, a reduction in the prison population leaves prisons free to focus on the rehabilitation of serious offenders.”

Like Bill Aitken, I had an acquaintance in my younger days who was sentenced to 30 days for fighting. He was given intensive physical education and he came out after the 30 days fitter and stronger and desperate for a fight. That is not what we should be looking to do with short prison sentences. We need to give people proper rehabilitation and take them away from their criminal offending.

James Kelly (Labour, Glasgow Rutherglen)

I oppose the Government’s amendment 61, which is backed by the grand alliance of the SNP and their little Liberal helpers. [Interruption.]

Alex Fergusson (None, Galloway and Upper Nithsdale)

Order.

James Kelly (Labour, Glasgow Rutherglen)

There is no doubt that the proposal represents a threat to communities. We should listen to the wise words of Scottish Women’s Aid, because 68 per cent of domestic abuse sentences are of three months or less. Angela Constance would do well to pay heed to those words.

On finance, Stewart Maxwell should read the Official Report of the Finance Committee’s discussions on the bill. Scottish Prison Service officials made it absolutely clear that releasing prisoners into the community would not save any money. We have two facts to consider—no money will be saved by releasing people into the community and vast investment in community sentences will be needed to make the policy work. We heard from the minister that no money is being set aside in the budget for the proposals. To create 7,000 community sentences would require £22 million. There is a black hole in the SNP’s funding for the policy.

Alex Fergusson (None, Galloway and Upper Nithsdale)

I must hurry you.

James Kelly (Labour, Glasgow Rutherglen)

It is clear that the Liberal Democrats have been conned on the issue. They have known all along that there is no funding, but the minister has bought them off with a working group.

The proposal will not serve communities well. The SNP has buried its head in the sand in relation to finance. The proposal is destined to fail and I urge the Parliament to vote against it.

Alex Fergusson (None, Galloway and Upper Nithsdale)

I can give Nigel Don one minute. I am afraid that is all.

Nigel Don (Scottish National Party, North East Scotland)

Thank you, Presiding Officer. I will therefore be brief.

First, I remind the Parliament that amendment 61 creates a presumption against short prison sentences. Every time that a member has risen to say that the option of short prison sentences will be taken away, he has been talking nonsense.

Secondly, Dr Richard Simpson suggested that there should be an amendment on remand. I ask him why he did not lodge such an amendment.

Thirdly, I refer to Professor Fergus McNeill’s evidence to the Justice Committee, which is quoted in paragraph 175 of its report. He said:

“three things help people to stop offending: getting older and becoming more mature; developing social ties that mean something to them; and changing their view of what they are about as a person. Short periods in prison do not help with any of those three things.”—[Official Report, Justice Committee, 19 May 2009; c 1893.]

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

First, I thank Patrick Harvie for his eloquent and sensible contribution. I say to him that all the evidence shows that we have the right direction of travel. We are trying to achieve results on a matter of great discussion and debate in our communities. We have to take practical, pragmatic steps, and that is why we reserve the right to come back, subject to the will of the Parliament, to seek to extend matters if we can show the doomsayers that Scotland has not collapsed and that we are beginning to deal with the issue.

I turn now to the particular issue of domestic violence that Johann Lamont raised. Do we have a problem in Scotland with domestic violence? Yes, we do. Can it be solved by prison sentences alone? No, I do not think so. Do those who commit serious and violent offences deserve to go to prison? Absolutely. Is that where they will go? Definitely. However, with regard to domestic violence, in Scotland we have a real problem with a culture of violence and machismo. Frankly, the rhetoric from the Labour-Tory coalition seems to be that we are going to sort it out by getting ramped up, tooled up and tore in. Nothing is going to change the culture of violence in Scotland less than taking that kind of attitude.

Why is there a presumption against short sentences? [Interruption.]

Alex Fergusson (None, Galloway and Upper Nithsdale)

Order.

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

Nigel Don has already answered that question, but I will tell the chamber again. One only has to meet the likes of Sheriff Raeburn, who sits on the domestic violence court in Glasgow. She has said that there are instances in which it is appropriate for someone who has breached a probation order that she has placed on them to be given a short, sharp shock and to be put away to give the family some respite. I accept that argument.

There will be domestic violence cases in which the presumption is overturned and rebutted, because the sheriff will tell the accused, “Your behaviour’s out of order. The wife and the bairns are entitled to some peace and quiet, and you are going to prison.” Whether that sentence is two weeks or three months, that sheriff will have the full support of this Government and this chamber. The presumption against short sentences does not overrule such an approach. Instead, it ensures that we tackle the root causes of minor offences—alcohol, low-level mental health problems and drugs—instead of allowing this machismo culture to go on.

In concluding, I make it quite clear that this direction of travel is supported not just by the liberal coalition that members have referred to but by my friend Henry McLeish, who is a former Labour First Minister, and the current United Kingdom Secretary of State for Justice, Ken Clarke, who, given his attitude to the national health service as a member of Margaret Thatcher’s Government, cannot be viewed as a liberal. That coalition of McLeish and Clarke shows that people are recognising that, to make our communities safer, we need to break the cycle of offending, tackle the root causes of that offending—which, as I have said, are alcohol, drugs and low-level mental health problems—and do what works. What works can be seen in the statistics: three quarters of those who are given short prison sentences reoffend within two years. Those people go back into their communities to continue the cycle of offending and to keep going into and out of prison with, as Robert Brown and other members have pointed out, the Prison Service unable to do anything other than contain them. It is quite right to contain some of those who perpetrate domestic violence, but those who have other problems need to have them addressed in the community.

Nevertheless, it is quite clear what works: tough community sentences allied to measures to deal with underlying alcohol and drugs issues and mental health problems. With such an approach, three fifths of offenders do not reoffend, as opposed to the three quarters of offenders who reoffend when given short prison sentences. That is why this is our direction of travel. This bill is about making our communities safer and, as their wise counsel shows, Ken Clarke, Cherie Blair and Henry McLeish support our approach.

I press amendment 61.

Alex Fergusson (None, Galloway and Upper Nithsdale)

I understand that Robert Brown does not wish to wind up, but I must ask him whether he wishes to press or withdraw amendment 61A.

Robert Brown (Liberal Democrat, Glasgow)

In light of the cabinet secretary’s comments—which, to be frank, I think members on the Labour benches should have listened to carefully instead of giggling through—I seek to withdraw amendment 61A.

Amendment 61A, by agreement, withdrawn.

Alex Fergusson (None, Galloway and Upper Nithsdale)

The question is, that amendment 61 be agreed to. Are we agreed?

Members: No.

There will be a division.

Alex Fergusson (None, Galloway and Upper Nithsdale)

The result of the division is: For 65, Against 62, Abstentions 0.

Amendment 61 agreed to.

Amendment 187 not moved.

Amendment 12 moved—[Robert Brown].

The question is, that amendment 12 be agreed to. Are we agreed?

Members: No.

There will be a division.

Alex Fergusson (None, Galloway and Upper Nithsdale)

The result of the division is: For 31, Against 96, Abstentions 0.

Amendment 12 disagreed to.

After section 20

Amendment 62 moved—[Kenny MacAskill].

The question is, that amendment 62 be agreed to. Are we agreed?

Members: No.

There will be a division.

Alex Fergusson (None, Galloway and Upper Nithsdale)

The result of the division is: For 81, Against 0, Abstentions 46.

Amendment 62 agreed to.

After section 23

Trish Godman (Labour, West Renfrewshire)

We move to group 8. Amendment 2, in the name of the cabinet secretary, is the only amendment in the group.

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

Amendment 2 seeks to reinsert in the bill a section that provides that at the point of sentencing an offender, a court must not consider it a mitigating factor that the offender was voluntarily intoxicated at the time the offence was committed. The provision forms part of our comprehensive framework for action to rebalance Scotland’s relationship with alcohol.

There remains a very strong link between alcohol misuse and offending, particularly violent offending. My predecessor, Cathy Jamieson, quite correctly referred to a booze and blade culture. The key issue is the astonishingly high level of offending associated with alcohol.

In spite of the understanding of the courts that the excuse of too much bevvy should not mitigate the sentence, there is evidence that, time and again, voluntary intoxication is being put before them as a mitigating factor. In her evidence to the committee, the Lord Advocate said:

“Day in, day out, notwithstanding the understanding that it does not mitigate, solicitors continue to put it before the courts in mitigation that their client would not have carried out the crime if sober. That is particularly prevalent as an excuse or as a form of mitigation in domestic abuse cases.”—[Official Report, Justice Committee, 9 June 2009; c 2060.]

The provision does not prevent the courts from considering other mitigating factors when sentencing an offender. Whether in cases of domestic violence or antisocial behaviour, we do not want to hear the litany of excuses that are rolled out in Scottish courts day in, day out. We do not want to hear that it was the drink that done it—it was not.

Robert Brown (Liberal Democrat, Glasgow)

Does the cabinet secretary accept that what solicitors say to the court does not matter so much and that the key point is what the courts do in response?

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

It is both. The issue is changing the culture that exists in Scotland that somebody is actually quite a nice fellow, but it was the drink that did it. I have no doubt that such people have redeeming qualities but, at the end of the day, it was not the alcohol that did it; it was the individual. We must stop tolerating that excuse and we must make it clear to those who defend offenders that that excuse will not be tolerated. We must also make that clear to the judiciary, as they have to be part of the process.

We fully accept that being drunk is not a defence in Scottish law. However, having practised for 20 years in the courts in Scotland—Robert Brown has practised here also—and having listened to the Lord Advocate, who knows more than anyone about what goes on in the courts of Scotland, I know that a litany of excuse is put forward daily that it was the drink that done it. No it was not. Let us make it clear and drive home the point that we will not tolerate violence, domestic or otherwise, or antisocial behaviour because someone simply went out and got bevvied.

I move amendment 2.

Richard Baker (Labour, North East Scotland)

When the issue was discussed at stage 2, Robert Brown and the convener of the Justice Committee made the valid point that the judiciary do not consider voluntary intoxication to be a mitigating factor when deciding on appropriate sentences. We supported Robert Brown’s amendment to delete the section that contained the provision, because it should be superfluous. We remain unconvinced that amendment 2 is necessary and we think that puddings are being a bit over egged. However, we are mindful of the Lord Advocate’s statement that

“Day in, day out, notwithstanding the understanding that it does not mitigate, solicitors continue to put it before the courts in mitigation that their client would not have carried out the crime if sober. That is particularly prevalent as an excuse or as a form of mitigation in domestic abuse cases.”—[Official Report, Justice Committee, 9 June 2009; c 2060.]

We accept that it does not necessarily follow that such pleas for mitigation are successful, but we feel that the arguments for and against the provision are finely balanced.

I do not believe, as some have argued, that agreeing to amendment 2 would mean that courts would not be aware when alcohol had played a part in an offence. I acknowledge that all members want effective action to tackle alcohol-related crime and to send a clear message that such crime will not be tolerated. I hope that amendments to come will send out a clear message on violence, too.

Although we believe that amendment 2 is probably unnecessary, it is at worst superfluous and we will abstain in the vote on it.

Bill Aitken (Conservative, Glasgow)

Presiding Officer, picture if you will Edinburgh sheriff court in 1990. A young if not exactly fresh-faced defence agent sits as the depute fiscal narrates the circumstances of a case. The sheriff looks up and calls Mr MacAskill. Mr MacAskill stands up and says, “My lord, this is a serious matter. My client broke the glass in the public house and put it in the complainer’s face, as a result of which he received 24 stitches. However, my client was drunk at the time.” Mr MacAskill would have received very short shrift from that court, as he well knows. The reality is that courts will not consider drink as a mitigation in any offence. Let us talk about the realities. Amendment 2 is absolutely and totally unnecessary. There is no justification for putting the provision in the bill—it is merely part of a crusade that Kenny MacAskill is carrying out with regard to drink and its consequences. The provision was thrown out by the Justice Committee and the amendment has absolutely no merit.

Robert Brown (Liberal Democrat, Glasgow)

With respect, the minister should have left the issue alone after the committee deleted the then section 24 at stage 2. The committee took the view that the courts and legal practitioners are perfectly well aware that alcohol is not a mitigating factor and do not require statutory direction to tell them so. It is true that solicitors frequently tell the court that their client was under the influence of alcohol when an offence was committed. If a solicitor has a client with a list of previous convictions as long as their arm, they might well be struggling for anything much to say in mitigation. However, the issue is not what solicitors tell the court, but what notice the court takes of the submission.

I do not accept Richard Baker’s suggestion that the provision is incidental and that the arguments are nicely balanced. Although the fact that an offence was committed under the influence of alcohol does not sound in mitigation, that is not to say that it is always irrelevant. There are cases in which alcohol has been taken under the pressure of personal events such as bereavement and where that is said to be a one-off. There are cases in which intervention to help to tackle a problem of alcoholism is highly relevant to sentencing. The courts are well aware of those issues and of when they are relevant and, more commonly, not relevant.

I am against putting into statute provisions that are likely to have all sorts of unintended consequences. Amendment 2 singles out alcohol but ignores the parallel issue of drugs, which is unsatisfactory. What about situations of drinks being spiked? The common law is flexible enough to take account of such things on their merits. It is doubtful whether what the Government is proposing would be; rather, it will create unhelpful ambiguity. It is not clear what the amendment is intended to do. The Government has provided little if any evidence of a problem in the working of the common law. The amendment should be rejected wholesale.

Stewart Maxwell (Scottish National Party, West of Scotland)

I support amendment 2 in the name of the cabinet secretary. When the Justice Committee debated this issue at stage 2, the same lines of argument were used by Mr Aitken and Mr Brown. I did not think that their arguments washed then and I do not think that they wash now. The fact is that statements about voluntary intoxication are used in our courts every single day and every single newspaper reports them every single day. It is not necessarily the case, as Robert Brown suggested, that sheriffs or judges will just ignore such statements. They might well do, but why do lawyers continually use them, day in, day out? If statements about voluntary intoxication have no relevance, no influence and no part to play in the process, why do lawyers continue to use them day in, day out? They believe that such statements have influence and are relevant, which is why we hear them in our courts every day.

We have to change the drinking culture and the drinking and violence culture, because the two are combined. Part of that must mean sending out a strong message that alcohol is no excuse for people’s behaviour. Whether someone is involved in a pub fight or is a wife beater in the home, that is unacceptable and drink has no place as an excuse for it in the court. I want to see an end to statements about voluntary intoxication.

Robert Brown said that the amendment could cause problems in a scenario of someone’s drink having been spiked. I do not understand the logic of that, because the plea in mitigation would be not that the person was under the influence of alcohol but that their drink had been spiked. Such a plea would be absolutely acceptable and it would be absolutely correct for the lawyer to make it.

Let us not mix messages and try to create a smokescreen. Let us deal with the issue and send out a strong message.

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

I concur with Stewart Maxwell’s comments. Voluntary intoxication is continually rolled out as an excuse. I have not practised in the Scottish courts for more than 11 years, but it was prevalent as an excuse then and I have heard from the Lord Advocate that it continues to be used on a daily basis. Is it accepted within the law? No, but as Richard Baker accepted and Stewart Maxwell said, there are times when the law must try to trigger a cultural change. We must put on record the point that it is entirely unacceptable to use alcohol abuse as an excuse whether for low-level domestic violence or for more serious offences. Sadly, that excuse is rolled out by lawyers and accepted by individuals, even if in most cases it is rejected officially by the judiciary.

I say to the Liberal Democrats and the Tories that the genesis of this matter was not simply the comments made by the Lord Advocate; the first person to challenge me on the issue was Chief Superintendent John Carnochan of the violence reduction unit, who recognised—as my predecessor Cathy Jamieson recognised, to her credit—the clear link between booze and blade in Scotland. If we are going to reduce violence in Scotland, whether in the home, the street or our communities, we need to tackle the problem of alcohol. Therefore, we need to drive home the message that alcohol abuse will not be viewed as an excuse. That is why John Carnochan raised the issue and why the Lord Advocate supports amendment 2. If the head of the violence reduction unit and the chief prosecutor and law officer are saying that we have a problem and that there is an issue that needs to be tackled, we should trust their judgment and back them.

Trish Godman (Labour, West Renfrewshire)

The question is, that amendment 2 be agreed to. Are we agreed?

Members: No.

There will be a division.

Trish Godman (Labour, West Renfrewshire)

The result of the division is: For 47, Against 33, Abstentions 45.

Amendment 2 agreed to.

Section 24B—Minimum sentence for having in a public place an article with a blade or point

We move to group 9. Amendment 3, in the cabinet secretary’s name, is the only amendment in the group.

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

Amendment 3 will remove section 24B, which was inserted at stage 2 to provide for mandatory minimum sentences for knife possession offences.

We are doing more than ever before to tackle knife crime. Tougher sentences and tough police action are taking weapons off our streets. That goes hand in hand with groundbreaking initiatives to educate young people about the dangers of knives. The results of that work are demonstrated in statistics that show that recorded crime last year was at its lowest level in nearly 30 years and that violent crime was at its lowest level since 1986. Our courts are handing down tougher sentences for carrying a knife—the average custodial sentence for knife carriers increased from 116 days in 2003-04 to 217 days in 2007-08.

Mandatory minimum custodial sentences for knife carriers—a one-size-fits-all approach—are not the solution. We are not the only ones who say so. Strathclyde Police’s chief constable, Stephen House, has said that mandatory minimum sentences are not the answer. I have referred to John Carnochan, the head of the national violence reduction unit. I do not think that he would mind my describing him as a hard-bitten Glasgow detective. In his evidence to the Justice Committee, he said:

“Jail doesn’t work, we need early intervention, restricting access to alcohol and knives.”

We should listen to those who are at the front line of the fight against knife crime.

John Muir and Chief Constable David Strang gave evidence to the Justice Committee on 23 March. Despite their divergent views, a clear message about the importance of education and prevention emerged from that session. We need to pursue a twin approach of education and enforcement and we need to give our courts the discretion to consider the circumstances of each case that comes before them. We need to give our judges sufficient discretion to sentence individuals, not offences. It would be more appropriate for the Scottish sentencing council to consider the appropriate disposals for people who are found carrying knives or other offensive weapons in public and to produce guidelines on that.

We should remember that, under the current law, a sentence of four years can be imposed simply for possessing a knife. When the police have, by the grace of God, intercepted somebody who was out to create mayhem, why would we wish to restrict a sheriff’s ability to impose a four-year sentence and instead impose a mandatory six-month sentence? The Government will support fully any sheriff who feels that giving the maximum sentence is necessary.

Richard Baker (Labour, North East Scotland)

It is clear that Mr MacAskill has not understood our previous amendment. He misrepresents our policy.

Members: Oh.

Trish Godman (Labour, West Renfrewshire)

Order.

Richard Baker (Labour, North East Scotland)

Section 24B imposes a mandatory minimum sentence. The courts would still be able to set sentences of four years, but they would have to give sentences of a minimum of six months. Under the Government’s proposals, more of these guys will walk free.

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

We must consider the facts. More people are being stopped and searched—almost 250,000 in Strathclyde alone. Fewer people are carrying knives. Of those who are caught with knives, more are going to prison and for longer.

Yes, we accept that we in Scotland have a problem with knife carrying. The solution is tough laws and visible enforcement but also education and allowing those in the front line—whether they are police officers or the judiciary—to use their discretion. Let us remember that progress is being made—the number of knife offences has reduced. That is against the background of the lowest recorded homicide rates in Glasgow in 10 years and in Edinburgh in 20 years and the lowest recorded crime rate in Scotland in 30 years.

There is a journey to travel, but we are taking action against the booze and the blade. Mandatory sentences would create injustice. Let us leave it to our judiciary to impose the appropriate sentence for the appropriate individual and the appropriate crime.

I move amendment 3.

Richard Baker (Labour, North East Scotland)

It is a bit rich hearing the Cabinet Secretary for Justice talk of leaving it to the judiciary given the law under the amendment that we have just agreed to.

The reason why this Parliament needs to take new measures to tackle knife crime could not be more clear. Scotland suffers from rates of violent crime that are higher than anywhere else in the United Kingdom and probably Europe. Thirty per cent of crime in Scotland is violent whereas in England and Wales the figure is 20 per cent. For us, knife crime remains at persistently high levels.

Robert Brown (Liberal Democrat, Glasgow)

Will the member give way?

Richard Baker (Labour, North East Scotland)

I cannot take an intervention. No one took my interventions—[Interruption.]—apart from the cabinet secretary, but that is the only thing that I will give him in the debate.

There were 3,422 convictions for knife carrying in 2007-08 and more—3,529—last year. We have sought to do more in the Parliament to tackle knife crime. In the last session, we passed new laws, opposed bail for knife criminals, conducted knife amnesties, and doubled the maximum sentence for carrying a knife—it is still available to the judiciary. However, we cannot escape the fact that, despite all those actions, the chronic problem persists. It is our duty to respond and to take further action. That is why we proposed a minimum mandatory sentence of six months for possession of a knife except in exceptional circumstances. We are pleased that the Justice Committee backed our amendment at stage 2. Therefore, it is particularly disappointing that the cabinet secretary should seek to remove the provision at stage 3. I am stunned by his lack of basic understanding of it.

We do not dispute that the provision represents a significant change in the law, but it is a necessary and practical one. The provision that we suggest is in line with that already in place for firearms offences. We already have a mandatory minimum sentence of five years for the possession of an illegal firearm, but there is no such provision for knife carrying despite the fact that knives account for far more murders in this country than guns do. Last year, 58 per cent of homicides in Scotland were committed with a knife, the highest percentage ever recorded. That is why we need to challenge more effectively the knife culture in this country. Every time that someone goes out carrying a knife—every time that they engage in that culture—they dramatically increase the chance that someone will be killed or injured. In future, we need to ensure that they leave the knife at home. For us, that means that someone who gets caught carrying a blade needs to expect not to get a fine but to go to jail.

Some have questioned the cost, saying that the provision will cost some £20 million. We do not believe that; we believe that it will act as a deterrent. Last year, 2,000 people were admitted to hospital with knife injuries. Knife crime costs our national health service in Scotland £500 million—half a billion pounds—and that is before we even look at the costs to the police and courts. However, we have to look beyond the statistics; we need to look at the people behind these cases. The human cost of these crimes cannot be counted. We can all point to comments from chief constables—I could refer to those from the Association of Scottish Police Superintendents—but what we really need to do is to listen to the victims of knife crime and their families. [Applause.]

Trish Godman (Labour, West Renfrewshire)

I am sorry, but it is not appropriate for those in the public gallery to applaud.

Richard Baker (Labour, North East Scotland)

I take that on board, Presiding Officer, but they are here today to bear witness to the devastating impact that knife crime has had on their lives.

I have met victims of knife crimes across the country, from Glasgow to Greenock and Cowdenbeath to Aberdeen. Also, 30,000 Scots have now backed the petition for minimum mandatory sentences for knife crime. They should not be ignored. Let us remember that the campaign was started not by a political party but by the father of a victim of knife crime. John Muir has given powerful testimony to the Parliament on the impact on knife crime. The loss of his son Damian in a random and senseless knife attack has been devastating for John and his family. He was not beaten by that; he is campaigning so that other families do not have to go through what his family had to face. He has worked with other families who have also been devastated by knife violence and his is one of a number of successful initiatives to tackle knife crime, including by way of educating young people.

We all know that there is no single solution, but John Muir, Kelly McGee and members of other affected families have argued consistently that to achieve the kind of culture change that we need—to get those who carry knives to leave the blade at home—we need to make this change. They want that not out of a sense of retribution, but because they do not want others to go through what they have had to endure. That is by far the most powerful case that has been put to the Parliament. The families are here today; I pay tribute to them and their campaigns. We should support them today and do all that we can to spare further innocent people the scourge of knife crime. I ask Parliament to listen to them and to reject the cabinet secretary’s amendment. Unless we do that, we will have failed them and failed to take the action on knives that this country needs.

Sandra White (Scottish National Party, Glasgow)

I say to people in the public gallery and others who have been affected by knife crime that I sincerely sympathise with them and offer them my condolences. However, I rise to support the amendment in the cabinet secretary’s name. It is wrong to politicise this very sensitive issue.

As a Glasgow MSP, I know only too well the knife culture that is associated with areas of Glasgow. It is shameful and shocking that the majority of knife crimes are committed in Glasgow. As all members have said, the problem must be tackled and stopped, but mandatory sentencing is not the answer. There is no evidence that mandatory sentencing will reduce reoffending. It does not matter what the Opposition Labour Party says, there is no evidence to support that claim. We must consider alternatives and ask why people carry knives. We must look at education, work with young people and support initiatives such as no knives, better lives, working with local communities. Surely spending £500,000 on initiatives such as no knives, better lives is much better than automatic jail sentences that will achieve nothing for the victims of knife crime or for the perpetrators.

The cabinet secretary and others have quoted at length John Carnochan, from Strathclyde Police’s violence reduction unit. I have a great deal of respect for John Carnochan, who is at the coalface. He says:

“What we should be looking at is not mandatory sentencing, but mandatory rehabilitation.”

That is what it is all about.

We have a great deal of respect and sympathy for the victims of any knife crime, but we cannot have a knee-jerk reaction. Steve House, the chief constable of Strathclyde, states:

“We have to deal with the possession and use of knives sensitively and intelligently, rather than in a dramatic, headline-grabbing way that sounds like the obvious answer.”—[Official Report, Justice Committee, 26 May 2009; c 1911.]

We should listen to the victims and their families, but we should also listen to the experts. Mandatory jail sentences for carrying a knife will not work. People will go in, come back out and learn nothing. We must look at initiatives such as no knives, better lives and work with communities, groups and victims.

Robert Brown (Liberal Democrat, Glasgow)

No one doubts that knife crime is a serious menace in our society or that the possession of a knife or other weapon by individuals in a public place is to be prevented. The question is, what is the best way of tackling the issue? Labour and the Conservatives believe that automatically locking people up for possession of a knife in all bar exceptional cases is how to reduce the problem. If that were the case, there would be some evidence to the effect that prison acts as a deterrent. Richard Baker slid over that issue in his speech. In reality, there is no such evidence. Researchers, prison governors, police chiefs and people such as Detective Chief Superintendent John Carnochan, of the violence reduction unit, are against the policy.

The evidence of the figures is stark. They show that even the experience, let alone the threat, of prison does not provide a deterrent. Out of a sample of 180 prisoners who on 7 March this year were serving prison sentences for carrying a bladed or pointed instrument, 163—90 per cent—had received previous custodial sentences during the past 10 years. All of those offenders had received prior custodial sentences for the same crime. There is some significance in the fact that 2,802 of the 4,892 possession cases last year were in the Strathclyde area. The problem is variable across Scotland.

The single thing that deters people from criminal behaviour is the likelihood of being caught. The stop and searches that Strathclyde Police has carried out have been effective, as the diminishing returns show. Fewer and fewer people who are searched at crime hotspots or elsewhere are found to be carrying weapons. For example, in March a report from Strathclyde Police’s Glasgow central and west division, which covers the city centre, showed a 21.6 per cent drop in crimes of violence and a 75 per cent reduction in murders. Cases that involved offensive weapons fell by 28.4 per cent and incidents that involved knives fell by 20.2 per cent. The force reported that it was searching more people and recovering fewer weapons. Those are significant results, which are worthy of closer examination.

If the Parliament were to enact a mandatory prison sentence for carrying a knife, what would be the result? The most immediate result would be the need to build a new Barlinnie prison or three new Shotts prisons, to accommodate the 1,345 people who were caught with knives last year but who did not go to jail—those are John Carnochan’s words, not mine. We would spend £31,000 per annum per head on those prisoners, so that they could learn new tricks from hardened criminals in jail.

Our prisons are already overflowing. Polmont young offenders institution, in particular, cannot accommodate any more prisoners. Where would Richard Baker or the Conservatives get the capital funding to build the new prisons or the revenue funding to pay the prison officers who would staff them? Sending 1,345 people to prison for six months, as Labour proposes, would cost almost £21 million. Labour cannot be serious about the matter.

The Government’s amendment 3, which would remove from the bill the provisions on mandatory sentences for knife crime, must be agreed to. This is a serious Parliament, which is in the business of representing the people by taking up serious issues of concern, such as the challenge of knife crime, and supporting effective action to tackle them. It would be a dereliction of our duty were we to adopt hugely expensive policies, which even the politicians who support them know will not work, when there is a wealth of evidence to tell us what works to reduce offending.

People have experienced grievous and incomprehensible losses and are entitled to have the Parliament provide a criminal justice system that is as effective as possible. That is what amendment 3 is about and that is what the Government is about. It is what we seek to do through this debate.

Duncan McNeil (Labour, Greenock and Inverclyde)

I speak for those of us in this Parliament and in the gallery who understand the need to address knife crime. We propose a mandatory sentence not as an alternative to a long-term strategy, but as an essential part of an approach that will address Scotland’s knife culture.

I say to Sandra White that the tough approach that we propose does not exclude the early prevention work that the cabinet secretary outlined, which has been piloted in my community with some success. However, I think, as other people do, that it is never acceptable to carry and use a knife to intimidate, wound or kill. Carrying a knife is a serious offence and the message should be clear: carry a knife and go to jail.

I welcome the campaigners who are in the gallery, including Margo Hagen, mother of Darren; Lexi Lyall, mother of William; Kelly McGee, sister of Paul; Georgette Neil, wife of Malcolm; and, of course, John Muir, father of Damian. John Muir has campaigned, doggedly, effectively and with dignity against the evils of Scotland’s knife culture, making his case for a mandatory sentence for knife crime. In the spirit of President Obama, when he was asked whether we can achieve political change from the ground up, he replied, “Yes, we can.” Through his petition, he has ensured that the Parliament has had one of its most important debates. The petition led to a knife-crime summit, and John Muir’s arguments won the support of the Justice Committee during the passage of the bill. With the support of members of all parties, we hope to defeat the Government’s amendment 3.

This is a significant test for our democracy and for the Parliament, the very purpose of which was to bring forward Scottish solutions to Scottish problems. The Parliament claims to be closer to the Scottish people and to understand their lives. It should be open and accessible. More important, it should be accountable to the people whom it serves. It would be a mistake for the Scottish National Party Government and its supporters in the Liberal Democrats to regard John Muir simply as a bereaved father speaking out only for his family’s loss. He also speaks for his neighbours in Inverclyde, the west of Scotland and the more than 30,000 people throughout Scotland who supported the petition for action on knife crime. He has given voice to communities throughout Scotland that demand action.

John Muir has won the popular argument against the Government, which has so far refused to listen and which, by its actions, would put more knife criminals on our streets. It is a complacent Government, with complacent MSPs who have lost the argument with a longsuffering public, who fear that the perceived rights of a criminal minority are more important than those of the innocent majority.

We have an opportunity to change that perception, to listen and to act on the public’s concerns. The success of today’s proceedings will be measured not in the quality of the debate or how many column inches it generates: we will be judged by whether we effect change that responds to the innocent majority. That will be the democratic test. I hope that we will not let that majority down and that people power will defeat party power. I hope that, by defeating the amendment in the cabinet secretary’s name, we will make a difference and answer the people’s call.

Bill Aitken (Conservative, Glasgow)

I realise that there is genuine concern throughout the Parliament about the effects of knife crime, but the existing situation cannot be allowed to continue. We cannot have so many young men, not only in our cities, going out for a night with a knife in their pocket. We cannot tolerate so many ending up in an accident and emergency facility with scarred faces, or on a mortuary slab. That situation is far too prevalent and we must do something about it.

There has been, arguably, judicial recognition of the extent of the problem, but that is not enough. The cabinet secretary said that we had to listen to people in the front line of the argument. How much closer to the front line can we get than people such as John Muir and Kelly McGee? They have seen at first hand in the most poignant of circumstances the impact of knife crime. We cannot have a continued litany of bereaved families telling of the pain and anguish that they have suffered. We must do something about it.

When the matter was debated at the Justice Committee, I did not think that Richard Baker’s amendment went far enough. Our preferred option was for a sentence of two years in respect of such offences in order that the message could get home. We have to save lives from being wasted.

It is simply not good enough that we sit idly on the sidelines while the slaughter—I use that term advisedly—continues. That is, in effect, what the Government wishes us to do on the matter, but it is high time that the Parliament and the Government spoke up for the victims of crime, not for the potential perpetrators. If the word got out that, if you carry a knife, you go to jail, people would simply not carry knives. We would not have the spurious defence that the knife was being carried for protection. That is the route to anarchy and we can tolerate it no longer.

The Justice Committee got it right. The Government, as it often does on justice matters, has got it completely wrong. It is completely at odds with public opinion and refuses to recognise the realities of the situation. For once—just for once in his tenure of office—Mr MacAskill should listen to the public and protect it.

Paul Martin (Labour, Glasgow Springburn)

What has struck me in the contributions from Labour members so far is that they speak on behalf of the victims of crime and not on behalf of those who commit the crimes. We make no apologies for that. When Sandra White talks about headline grabbing, I hope that she is not referring to people such as John Muir. I am sure that John would rather be at home with his son Damian than be here in the Parliament.

The focus of the amendments from Kenny MacAskill’s supporters, with their carefully scripted speeches, has been on the great success of community sentences in their local areas. I am not convinced that many of those who have been subject to such sentences in the past have complied with or feared them. If the sentences are so successful, why were 2,000 people injured and more than 50 people killed last year as a result of knife crime? Labour is clear that doing nothing is not an option. It is time for Parliament, and the members opposite, to stand up for the victims of crime, some of whom are here in Parliament today.

Stewart Maxwell (Scottish National Party, West of Scotland)

I very much agree with Robert Brown’s opening comments. In all seriousness, though, those members who claim that others are ignoring the suffering of bereaved families belittle only themselves and should show caution before making such false accusations. I want to talk about the evidence rather than the arguments, opinions and emotions on both sides of the debate. There are deeply held views on both sides. However, the evidence from around the world is crystal clear.

Professor Michael Tonry, a specialist in criminal law and public policy at the University of Minnesota, researched the unintended effects of mandatory penalties. He said:

“One claim often made for mandatory minimum sentence laws is that their enactment and enforcement deter would-be offenders and thereby reduce crime rates.”

That is the Labour argument. That claim, if true, makes a powerful case. Unfortunately, the accumulated evidence shows that it is not true. If mandatory sentences worked, I and every other member would support them. However, they do not.

Richard Baker (Labour, North East Scotland)

We have mandatory sentences for firearms offences, and firearms offences are falling.

Stewart Maxwell (Scottish National Party, West of Scotland)

We are talking about laws that we are trying to introduce today—[Laughter.] Let us be serious about this. Let us devolve firearms legislation to this Parliament, then let us debate it and see how Opposition members react.

Returning to the issue of evidence, in Western Australia, mandatory sentencing laws were introduced following an increase in car thefts by juveniles. That produced police chases in which 16 related traffic deaths occurred in 18 months. Research showed that the law’s enactment had had no effect on the rates of automobile theft, and the law was repealed.

In South Africa, mandatory minimum sentences were introduced mainly for drugs offences. Research by the Viljoen commission showed that the law resulted in unfair sentences and substantially increased the prison population without any observable effect on crime rates.

The same is true in the United States of America. For example, in Massachusetts, studies concluded that mandatory minimum sentences had no deterrent effect on the use of firearms in violent crimes or a small short-term effect that quickly disappeared. Studies throughout the United States show that mandatory sentencing laws do not work. In Detroit, Michigan, the mandatory sentencing law did not have a preventive effect on crime. In Jacksonville, Florida, and elsewhere the same research showed the same outcome. The law does not work. If it worked, we should support it, but the evidence shows that it does not.

This is Scottish Labour’s flagship policy on crime. It is utterly discredited. It is rejected by criminal justice professionals, by victims’ representatives and by Scottish Labour’s colleagues in England and Wales. It is based on a mixture of fantasy, hypocrisy and deceit.

Margaret Curran (Labour, Glasgow Baillieston)

To Stewart Maxwell, I say that I will be driven by the experience in Glasgow and Scotland rather than by research from the United States.

I am moved to speak in the debate because of the experience of my constituents—such as Sam, who is in the public gallery today—who have lost their loved ones in a knife-crime incident and now have a tragedy that lasts forever.

Members of this Parliament, especially those of us who have been here since the beginning, need to be honest—indeed, I am struck and saddened by the SNP’s complacency on this—that we have already tried many approaches. I was not persuaded of the need for mandatory sentencing earlier in my parliamentary career, but I am persuaded now because previous approaches have failed to make the breakthrough in tackling knife crime.

We know that far too many in Scotland carry a knife with impunity. Too many who carry a knife are not frightened of arrest or of facing court, because they know that they will probably not go to jail. Far too many crimes—their victims are in the public gallery today—are perpetrated by people who are already out on bail for previous knife-crime offences. Despite all our best efforts, the time has come to be radical. It is time that this Scottish Parliament was radical.

The statistics tell us that, if knives are carried, they get used. We need to break the myth that somehow knives protect people. We know that knives endanger those who carry them and that they endanger others. Mandatory sentencing is a big step—I acknowledge that—but it is a big step because we have a big problem.

Margo MacDonald (Independent, Lothians)

Will the member give way?

Margaret Curran (Labour, Glasgow Baillieston)

I would love to, but I do not have time.

If we agree to the proposal in the bill today, a message will run round Scotland that we no longer accept the carrying of knives. That message of “No ducking, no diving, if you carry a knife, you will face the consequences” will be understood on our streets.

Scotland needs that wake-up call. I am sad to say that the Scottish Government needs that as much as the criminal and hooligans do. It is time for tough love. It is what we need to save lives, and it will work.

Trish Godman (Labour, West Renfrewshire)

A considerable number of members wish to speak, so members may speak for only a tight two minutes each.

Patrick Harvie (Green, Glasgow)

Like, I suspect, all members in the chamber, I feel nothing but respect for the campaigners who are present in the public gallery watching the debate and for the politicians who have joined—[Interruption.] I ask members to listen. I also have respect for the politicians who have joined that campaign and for their intentions and motives. That respect is not properly shown if we allow the debate to descend into political parties barking at one another about who cares or does not care. Everybody cares about the issue.

I agree with several of the comments that have been made by Richard Baker, Margaret Curran and even my good friend Bill Aitken. Far too many knives are being carried. Far too many people do not fear the consequences of carrying a knife. Every time that a knife is carried in public hugely increases the risk not only to other members of the public, but to the person carrying the knife. I also agree that the Parliament has a responsibility to act and to take the issue, and our duty, seriously.

Where I disagree with the specific proposal that the Labour Party is backing today is that it fails to differentiate between different circumstances. The issue comes back to the points that I made about short sentences earlier in today’s proceedings.

Trish Godman (Labour, West Renfrewshire)

You have 30 seconds left.

Patrick Harvie (Green, Glasgow)

Just as there are some things that prison is good for—no member here disagrees that it is necessary to confine those who pose a serious danger—there are some things that legislation is good for and some things that it is not good for. Discriminating between a frightened wee boy who knows that he has made a mistake and a genuine thug who poses a threat is something that legislation cannot do. The courts need to do that. There is a genuine risk that, if we impose mandatory sentences, we will create a culture change among some frightened wee boys. A few months in Barlinnie will change their culture for the worse, not for the better.

Trish Godman (Labour, West Renfrewshire)

I remind members that they have a very tight two minutes.

James Kelly (Labour, Glasgow Rutherglen)

This is one of the most important debates that the Parliament has had during the parliamentary session. Barely a weekend goes by in which there are not knife incidents throughout Scotland. In Glasgow at the weekend, two men were stabbed outside the Renfrew ferry. Knife crime continues to be a problem and is involved in 58 per cent of homicides.

Some have argued that mandatory sentences do not work. That is a complacent argument. They have cited people on the front line to back up their argument, but let me quote the argument that was made by Kelly McGee, a knife-crime campaigner who unfortunately lost her brother. She said:

“If people break the law, they should be made to face the consequences. I believe that mandatory minimum custodial sentences for knife carriers will make people think twice about carrying a blade in public. If criminals are not afraid of the consequences, they will not think twice about their actions.”

Margo MacDonald (Independent, Lothians)

Will the member give way?

James Kelly (Labour, Glasgow Rutherglen)

I am sorry, but I have only two minutes.

Robert Brown said that the Parliament must be a serious one, and I agree. The question is, what will we do today? Politics is about making a difference, and this change will make a difference. This is not the time for whimpering responses; it is a time for leadership, a time to stand up and be counted, and a time for the Parliament to send out the strong message that knife crime is unacceptable and we will root it out in our communities. Members should support the bill as amended at stage 2 and give hope to those families who have suffered as a result of knife crime.

Dave Thompson (Scottish National Party, Highlands and Islands)

There is no evidence that mandatory sentencing reduces reoffending, but the Scottish Government is taking action that is having an effect on knife crime. The Scottish Government is showing leadership.

For example, the Scottish Government is working with the national violence reduction unit, with direct and record Government investment of £1.4 million over the past two years. The Scottish Government has invested £80,000 in a new initiative—medics against violence—which was launched on 18 November. The Scottish Government is providing £1.6 million over two years to the community initiative to reduce violence, with a further £3.4 million in funding being provided in services and in kind by partners to tackle the long-standing problem of gang violence in one of Glasgow’s hardest-hit areas. The Scottish Government has introduced tougher prosecution guidelines, with the result that more than 600 knife carriers have been prosecuted on indictment rather than summary complaint, and 78 per cent of those prosecutions have resulted in imprisonment. The average sentence of imprisonment that is passed for knife-crime prosecutions on indictment is more than 11 months.

The key to tackling knife crime is catching as many knife carriers as possible, giving judges greater flexibility with longer sentences, and investing in things that divert and occupy young people. The SNP has taken action on all three.

Margo MacDonald (Independent, Lothians)

Will the member give way?

Dave Thompson (Scottish National Party, Highlands and Islands)

Yes.

Trish Godman (Labour, West Renfrewshire)

You will need to be very brief, because Mr Thomson has only two minutes.

Margo MacDonald (Independent, Lothians)

Does the member agree that we saw the last of the razor culture in Glasgow without mandatory sentencing, but with judges doing their job?

Trish Godman (Labour, West Renfrewshire)

Mr Thomson, you have exactly 20 seconds.

Dave Thompson (Scottish National Party, Highlands and Islands)

Yes, we should let the judges do their job; we should trust them and the sheriffs, because they know the details of every individual case.

Jeremy Purvis (Liberal Democrat, Tweeddale, Ettrick and Lauderdale)

The carrying and use of knives is often more dangerous in Scotland than guns are and, in most cases, the perpetrator’s age is the same as that of the victim—under 19. The reoffending rate is far too high, and mandatory sentences will have no impact on that. Cathy Jamieson argued that case eloquently when I was on the Justice 2 Committee, and Margaret Curran also held that view at the time. Have we explored all the options?

At that time, I proposed a maximum seven-year combined sentence of custody and community service. A maximum of four years would be served in custody, and a minimum of three years would be community service. That would get us to the roots of why young people carry knives in Scotland, particularly in our cities. The Labour members of the committee at that time voted down that proposal. At that meeting, Jackie Baillie said that the argument that was used was simplistic and that the proposal would mean that people would carry guns instead of knives. The Labour Party’s argument was that, if we make the law the same for those who carry knives as it is for those who carry guns, people will carry guns rather than knives. That was the wrong argument then, and it is the wrong argument now.

Mr Kelly asked for leadership in the debate. Leadership is about using judgment that is based on evidence; it is about getting to the root cause, not just taking an option that we know will not have a long-term success rate. That should be the focus of the debate.

Karen Gillon (Labour, Clydesdale)

We have mandatory sentences for carrying firearms because they are deadly weapons. So are knives.

Fifteen years ago, on Christmas day, my friend John was killed in Jedburgh by a single knife wound. He was an innocent victim in the wrong place at the wrong time, killed by a single stab wound that had devastating consequences for him, his family and the community. Fifteen years on, day in and day out, people are still killed and injured on our streets by a knife or other pointed implement.

Hundreds of thousands of innocent families have suffered. People who have been slashed have lost their employment chances because they have a slash down their face and nobody will give them a job, even though they were the innocent victim. Families have lost loved ones. Only four weeks ago, on Lanark High Street at 2 o’clock in the afternoon, a man was slashed from ear to ear. The community had to deal with that.

The cabinet secretary presents a false choice: if we have a mandatory sentence, we cannot do education, rehabilitation and stop and search. What a lot of nonsense. Sandra White says that there is no evidence that a mandatory sentence will stop people carrying knives. Well, there is plenty of evidence that the current system does not stop young people carrying knives on our streets. We have reached a situation in which, for far too many young people, particularly young men, a knife is as much a designer accessory as a hat, a belt or a baseball cap. We are letting them all down.

Patrick Harvie talked about a scared wee boy—that wee boy is as likely to be the victim as the aggressor. Today, we can do something brave: we can vote against the cabinet secretary’s amendment and do something for young people in Scotland.

Nigel Don (Scottish National Party, North East Scotland)

I point out to Karen Gillon that the evidence is that the number of knives being carried is reducing. The number of knives being found is certainly reducing, and the police are looking very hard for them.

Richard Baker said:

“we need to ensure that they leave the knife at home.”

I absolutely agree with him. I suggest that there is no dispute throughout the chamber, nor within the public gallery, that the knife should be left at home. The issue is how we ensure that.

I return to the point that has been made many times in the debate. Whether I like it or not—and I do not like it—the evidence is that mandatory sentences do not work.

Richard Baker (Labour, North East Scotland)

Will Nigel Don give way?

Nigel Don (Scottish National Party, North East Scotland)

Forgive me for a moment, Richard.

We merely have to look back over the centuries in which we had capital punishment to realise that it did not prevent people from doing a lot of things. Mandatory sentences simply do not work, and we know that. That is why we have to ensure that we listen to the evidence and do things that are appropriate.

I want also, improbably, to quote Bill Aitken. He said:

“We have to save lives from being wasted.”

I agree with him. One of the best ways of wasting lives is to send young men, who are simply doing something that they perceive, incorrectly, is appropriate in their culture, to prison—the university of crime. Those are the points that are being forgotten about or ignored, and they are the other side of the argument.

If I believed that mandatory sentences would stop people carrying knives, I would vote for mandatory sentences, Government whip notwithstanding; I think that most of my colleagues would do so, too. However, the evidence is that mandatory sentences are not the right way to go and on that basis—because I care about the long-term future of Scotland—I cannot support the bill as it stands.

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

Let us be clear: there is a problem in Scotland with knife crime. We recognise that. Far too many families are bereaved, and we pay tribute to those who, despite their loss, have campaigned to try to make things better. In particular, we pay tribute to John Muir and others who have sought to make changes, which are working in Greenock and Inverclyde, where problems are still far too prevalent but progress is being made.

We have to take action, but it is a question of what we do and what works. As I said earlier, more people are being stopped and searched, fewer are carrying knives and those who do face tougher and longer sentences. That is appropriate. Equally, we must ensure that we do not have any knee-jerk reactions that would impact in other ways. If we spend money on prisons by locking everybody up, we cannot pour money into the no knives, better lives campaign, diversionary initiatives and education. Those things cost money, but what has been shown in Greenock and Inverclyde is that matters are working and progress is being made.

Margaret Curran made various points, but I refer to John Carnochan, who is on the front line and who asked, “If we give somebody two years in jail the first time they’re caught carrying a knife, what do we do the second, third and fourth time? Do we operate a three-strikes-and-you’re-out system?” That is why we have to listen to guys such as John Carnochan and do what is right. We have a problem in Scotland; let us ensure that we tackle it.

Let us listen to those on the front line. Patrick Harvie was mocked and sneered at by some on the Labour benches, but there are frightened wee laddies who carry knives. They have to face the consequences of their actions, but I can tell members this: putting them in prison would not improve them or change the situation. Indeed, it would probably make matters worse.

Let me quote Sheriff John Herald, who sits at Greenock sheriff court. He said:

“I have spent many years going on about possession of knives in this town, the damage they can do and what people found with these items can expect to happen when they appear in this court.”

Sheriff Herald is no shrinking violet. He continued:

“There have been four cases today involving possession of knives and four cases where I haven't sent anyone to prison. No doubt that will attract some criticism ... But there are times where campaigners wanting mandatory sentences for people found in possession of knives do not understand that all cases must be looked at and considered on their own merits.”

Sheriff Herald would have my full support in giving somebody four years simply for possessing a knife. He has a track record in making it clear that there is a problem in Inverclyde and in taking action and imposing severe sentences when necessary. However, he also recognises—as does Patrick Harvie—the case of the frightened wee laddie.

Labour members should also think about the situation of the soldier who has served in Iraq, who has come home from Helmand and who is self-medicating—he has problems with alcohol. He picks up a knife at a party or in the house but does not use it. Would they give him six months in prison at Her Majesty’s pleasure? Or would they allow Sheriff Herald and others to remember the service that that soldier has given to Queen and country? Six-month mandatory sentences bring manifest injustices not simply for frightened wee laddies, but for those who suffer from post-traumatic stress disorder.

Trish Godman (Labour, West Renfrewshire)

The question is, that amendment 3 be agreed to. Are we agreed?

Members: No.

There will be a division.

Trish Godman (Labour, West Renfrewshire)

The result of the division is: For 63, Against 61, Abstentions 0.

Amendment 3 agreed to.

Section 26—Offences aggravated by connection with serious organised crime

We come to group 10, on offences aggravated by connection with serious organised crime. Amendment 13, in the name of Robert Brown, is the only amendment in the group.

Robert Brown (Liberal Democrat, Glasgow)

Sections 25 to 28 introduce a number of new offences in the area of serious and organised crime, which build on the common-law crime of conspiracy. The whole chamber will support effective measures to get at the Mr Bigs behind criminal gangs—the people with layers of underlings between them and the direct commission of a crime. At stage 2, the committee endeavoured to test the Government’s proposals in this difficult area. We had specific concerns about whether the crimes that the bill will create were sufficiently defined to target the people whom we are after. Despite the targeting of serious and organised crimes, that remains an important aspect of legislation.

Amendment 13 addresses the need for corroboration of the aggravation of connection with serious and organised crime. In common law, an aggravation does not require to be corroborated provided that the main corpus of the crime is proved by corroborated evidence. The same is true for statutory aggravations such as racial and sectarian offences. That is entirely reasonable. I do, however, have some concerns in this instance. A minor breach of the peace or a theft charge attracting, in the normal way, a monetary penalty would, if aggravated by connection with serious and organised crime, carry a potential prison sentence of five or 10 years. Section 25, “Involvement in serious organised crime”, provides for a potential sentence of 10 years in jail. I am not sure that that does not change the nature of the crime entirely and, therefore, propose that it might require corroboration. I would like to hear the minister’s justification for the bill as it stands.

An example has been suggested to me of a case in which someone is charged with living off immoral earnings, but in which there is one credible strand of evidence that the girls involved had been trafficked. I find that example compelling, given the lack of prosecutions and convictions for trafficking. Of course, everyone knows that Al Capone was jailed for tax evasion rather than for gangster crimes but, at the other extreme, we could end up with a situation in which a minor offender is locked up for years on the basis of thin evidence of links to something bigger. The amendment makes a serious point, but I am ready to listen to what the minister has to say.

I move amendment 13.

James Kelly (Labour, Glasgow Rutherglen)

I oppose Robert Brown’s amendment 13. There is agreement across the chamber that we must tackle serious and organised crime through the bill, to support police officers and public services that award procurement contracts and want to ensure that they do not tie in to serious and organised crime. The amendment would weaken the bill. I support the bill’s provisions on taking evidence from a single source. We cannot be complacent in the fight against serious and organised crime, and in this case the bill is adequate.

Bill Aitken (Conservative, Glasgow)

With respect to James Kelly, I do not think that that is the issue. Robert Brown makes a good point with amendment 13. He and I do not agree on many justice issues, but we share qualms about breaching fundamental principles of Scots law, of which corroboration is one.

I am aware that, in recent times, we have departed from that principle radically in respect of racial or homophobic aggravations to assaults and breaches of the peace, for example. There have been good cases for doing so, but I have never been quite comfortable about it.

James Kelly’s arguments do not have a great deal of validity. The failure to agree amendment 13 would impact, to some extent, on the principles of justice, but it would not impact on the issue with which he and I are concerned, which is that the serious and organised crime provisions should be effective, as the corroboration in that respect would be the crime itself, and it would be fairly easy to come up with the additional corroboration that would be needed to ensure that the prosecution would succeed. I know that that is a fine point, but I think that Robert Brown is correct, and we will support his amendment.

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

Although we understand the reason for amendment 13, we do not think it appropriate or necessary. The Solicitor General has already spoken to Robert Brown on the issue but I will try to further clarify matters.

We should be clear that the normal rules of corroboration still apply to the underlying offence that would incur a statutory aggravation. The current provision requires a single source of evidence to establish the aggravation. That is in line with the common law on aggravation and with previous statutory aggravations, such as the Offences (Aggravation by Prejudice) (Scotland) Act 2009.

If amendment 13 were accepted, it would require corroboration for the aggravation to apply. However, if the fiscal had more than one source of evidence establishing an accused’s involvement in serious or organised crime, he would likely be seeking a conviction on one of the substantive offences in sections 25, 27 and 28. Therefore, the amendment would make the statutory aggravation meaningless and devoid of any practical use.

Robert Brown is, correctly, concerned that an offender might receive a sentence where the aggravation could be more severe than the original sentence. All that this section does is require the sentencing sheriff or judge to record the aggravation and to take it into account in determining the appropriate sentence, and to indicate whether and how the sentence is different to the one that would have been imposed if the offence were not aggravated. That is a matter for the court to determine after hearing all the facts and circumstances of the case, but the starting point in determining the sentence will be the index offence and the appropriate sentence for that offence.

I invite Robert Brown to withdraw amendment 13. The issues are technical and complicated. As I said, the Solicitor General has spoken to Robert Brown already—and doubtless did better than I have just done—but I hope that I have supplied additional clarification.

Robert Brown (Liberal Democrat, Glasgow)

We have had an interesting and worthwhile debate on this important matter. We need to go back to where the Justice Committee began, which is the fact that a number of new offences are proposed to deal with the significant problem of the Mr Bigs in crime. I remind the Parliament that the new offences—the cabinet secretary touched on them—are involvement in serious organised crime, directing serious organised crime and failure to report serious organised crime. In all those cases, the boat is pushed out considerably beyond the current definition of conspiracy, under which the matter is dealt with at present.

The Justice Committee’s starting point was its concern that the proposed offences are not as well defined as they might be. We bowed to the Government’s view on that, because it has a galaxy of legal officers behind it to provide support on technical matters, but it seems to me that the point that I made in my opening speech is still valid. Ultimately, the new offences exacerbate relatively minor crimes and make them into things that carry serious penal consequences on what might appear to be thin evidence. To be frank, if we cannot get the guy under involvement in, directing or failure to report serious organised crime, the evidence must be pretty thin. In those circumstances, although I find the area difficult, I will press my amendment.

Alasdair Morgan (Scottish National Party, South of Scotland)

The question is, that amendment 13 be agreed to. Are we agreed?

Members: No.

There will be a division.

Alasdair Morgan (Scottish National Party, South of Scotland)

The result of the division is: For 32, Against 88, Abstentions 1.

Amendment 13 disagreed to.

After section 31A

Group 11 is on threatening or abusive behaviour and stalking. Amendment 63, in the name of the cabinet secretary, is grouped with amendments 188, 64 to 67, 14, 68 to 78 and 189.

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

Amendment 63 creates an offence of threatening or abusive behaviour. It is intended to address the uncertainty about the scope of the common-law offence of breach of the peace that arose as a result of the appeal court’s decision in Harris v Her Majesty’s Advocate. In that case, the court ruled that a public element to the offending behaviour is required for the offence of breach of the peace to be committed. Although the judgment does not affect the majority of breach of the peace cases, which take place in public, we are concerned that it will make it more difficult for the criminal law to intervene, where that is appropriate, in domestic abuse cases that involve threatening or abusive behaviour but in which there is no evidence of physical violence that would enable a charge of assault to be libelled, as such cases often lack an obvious public element.

The incoming president of the Association of Scottish Police Superintendents expressed concern at its annual conference in May that the decision has also made it much more difficult to prosecute people who are abusive towards police officers, especially when the abusive behaviour takes place in private.

Amendment 63 provides a statutory offence that is intended to ensure that conduct that could have been prosecuted as breach of the peace prior to the decision can continue to be prosecuted. It provides that it shall be a criminal offence for a person to behave in a threatening or abusive manner that is likely to cause fear or alarm to a reasonable person where the accused either intends to cause fear or alarm or is reckless as to whether their behaviour will cause fear or alarm. Unlike in the common-law offence of breach of the peace, it does not matter whether the conduct takes place in private or in public.

In lodging amendment 63, we have taken account of the Justice Committee’s concern that the stage 2 amendment on the matter was too widely drawn and risked interfering with a person’s right to freedom of expression. The offence in amendment 63 is more narrowly defined in that it applies only to behaviour that would cause a reasonable person to feel fear or alarm and does not refer to distress.

Margo MacDonald (Independent, Lothians)

Would soliciting be an example of that?

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

No, I do not think that that would be a specific example. I am talking about people who, for example, shout abuse at policemen when no other members of the public are present or shout abuse in their home as a form of domestic violence. As I say, amendment 63 seeks to deal with situations in which the public are not present and, in that respect, soliciting is a separate issue.

Instead of applying only to any behaviour which

“would ... cause a reasonable person ... fear or alarm”

the offence will require that the accused’s behaviour is “threatening or abusive” to ensure that we focus on the accused’s behaviour as well as the effect that it is likely to have on a reasonable person. We have also included a defence that would allow an accused person to show that their behaviour was, in all the circumstances, reasonable.

Amendment 63 also seeks to provide the police and prosecution with the power to act in respect of criminal conduct that had previously been prosecuted as a breach of the peace and which lacks the requisite public element without unreasonably restricting a person’s right to freedom of expression. The common-law offence of breach of the peace is not affected by this amendment and remains available as a charge in suitable cases. Indeed, the president of the Association of Scottish Police Superintendents has expressed the association’s support for this amendment, which he says is

“necessary to protect police officers from threatening and abusive behaviour in line with our duty to protect the communities that we serve across Scotland.”

Amendments 64 to 78 are intended to ensure that the new statutory criminal offence of stalking, the result of amendments lodged at stage 2 by Rhoda Grant and agreed by the Justice Committee, operates as robustly and effectively as possible. My officials discussed the amendments with Rhoda Grant before lodging them and they have been shared with Action Scotland Against Stalking’s Ann Moulds, who has led the campaign for legislation to tackle stalking and who has confirmed that she is content with them.

Following concerns expressed by the Crown Office about the requirement in the new offence to prove that a victim suffered “psychological harm” as a result of stalking activity, amendment 64 seeks to amend the new offence to provide that A stalks B where A’s course of conduct causes B to suffer “fear or alarm”. The Crown Office considered that the original provision could prove to be a significant barrier to prosecution, especially if the courts determined that it was necessary to provide evidence that the victim suffered a mental illness as a result of this activity. By contrast, the courts are familiar with the test of “fear or alarm” because a similar one is used to determine whether conduct constitutes breach of the peace. It is conduct that causes “fear or alarm” that is the essential harm that we are seeking to criminalise. Amendments 65, 66 and 76 make changes that are consequential on amendment 64.

Amendments 67 and 68 are technical amendments. Amendment 67 seeks to amend section 31B(5) to refer to a “course of conduct” rather than a “course of action” and amendment 68 seeks to provide that the list of activities constituting “conduct” for the purpose of this offence is exhaustive rather than illustrative. That is appropriate because of the catch-all provision in section 31B(6)(i).

Amendments 69 through 75 seek to make minor amendments to the list of examples of conduct in section 31B(6). Amendments 69 and 70 seek to amend section 31B(6)(b) to include attempts to contact a person—for example, by leaving voice-mail messages on a person’s phone or sending e-mails that may or may not be read—and to remove references to the means by which such contact may be made to ensure that future technological developments do not result in the provision becoming outdated.

Amendment 71 seeks to amend section 31B(6)(d) so that it refers to “monitoring” rather than “tracing” a person’s use of the internet, e-mail or other electronic communication. We consider that reference to be clearer.

Amendment 72 is intended to simplify the drafting of section 31B(6)(e) while ensuring that it continues to apply to all premises and places, whether public or private. It is important to remember that the list of activities set out in section 31B(6) may in themselves be entirely innocent. The offence is committed only if these activities are undertaken with the intention of, or with recklessness as to the possibility of, causing fear or alarm and actually have that effect.

Amendments 73 and 74 seek to amend section 31B(6)(g) to ensure that it applies to the giving of “anything”—not only “offensive material”—to B or any other person. Again the offence will be committed only if there is an intention to cause fear or alarm, or recklessness as to the possibility of causing fear or alarm, and that is achieved. We are aware of stalking cases in which material that is not objectively offensive but which, in context, may cause a victim of stalking fear or alarm is given or left so as to be brought to the victim’s attention.

Amendment 75 seeks to amend section 31B(6)(h), replacing

“keeping B or any other person under surveillance”

with

“watching or spying on B or any other person”,

as the original drafting could appear to be an example of a course of conduct while the other examples in section 31B(6) refer to individual acts.

Amendment 77 is intended to increase the maximum penalty on summary conviction from six to 12 months to reflect the greater sentencing powers of summary courts.

Amendment 78 provides that the offence of threatening or abusive behaviour is an implied alternative to the offence of stalking. That means that, in circumstances in which someone is charged with stalking but the court is not satisfied that the accused committed the stalking offence but is satisfied that the accused committed the offence of threatening or abusive behaviour, it may convict of that offence.

We assume that amendment 14 seeks to ensure that the stalking offence does not inadvertently criminalise otherwise lawful public protest or industrial action. We share Robert Brown’s concern that we should be careful to ensure that we do not inadvertently criminalise legitimate, lawful public protest or industrial action. The right to peaceful protest is a cornerstone of our democracy. However, the difficulty with amendment 14 is that it creates an ambiguity. It is unclear whether it is the individual’s course of conduct, the public protest or the industrial action that must be reasonable. If, as we think Robert Brown intends, it is the course of conduct that must be reasonable, we do not consider the amendment to be necessary. The offence already contains safeguards that ensure that it could not be used to prosecute people engaged in lawful public protest or industrial action. However, it is possible to interpret the amendment as creating a defence, even if the accused’s course of conduct is not reasonable, provided that the public protest or industrial action is reasonable. That cannot be right, because it would mean that those intent on unacceptable behaviour could use legitimate public protest or industrial action as a cover for such behaviour. Legitimate public protest and industrial action should be peaceful and about making a point; they should not be about causing fear or alarm to those who may have different views or who simply happen to be in the place where the protest or industrial action is taking place. Where such fear or alarm is caused, that would in any case almost certainly constitute a breach of the peace under common law and so would not be otherwise lawful under the terms of the amendment. Furthermore, the stalking offence already contains a defence that the accused’s conduct was reasonable in the circumstances. That would be a matter for the courts to determine.

I hope that I have reassured Robert Brown that the safeguards that are contained in the stalking offence are sufficient to ensure that it could not be used to prosecute people involved in lawful public protest or industrial action. As I said, we think that amendment 14 creates an ambiguity.

I turn to amendment 188.

Alasdair Morgan (Scottish National Party, South of Scotland)

You should be as brief as possible, minister, please.

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

I understand that amendment 188 seeks to deal with one of the most serious consequences of the Harris v Her Majesty’s Advocate judgment, but I do not think that it is necessary if the Government’s amendment 63 is agreed to. There is also a difficulty in retaining reference to behaviour that is likely to cause distress, which was the reason for removing it from the Government’s provision. Amendment 188 is too narrow; what the Government has drafted is better.

Finally, the provision allows only for prosecution on summary complaint with a maximum sentence of 12 months’ imprisonment, but we may wish to proceed further.

I move amendment 63.

Alasdair Morgan (Scottish National Party, South of Scotland)

I let the minister speak at length, as it is often important to get such things on the record, but I would be glad if other members could be as brief as possible.

John Lamont (Conservative, Roxburgh and Berwickshire)

I speak in favour of my amendment 188, which was drafted in opposition to the Scottish Government’s amendment 63.

At stage 2, the Scottish Government lodged amendment 378 with the intention of creating a new statutory offence. My colleague Bill Aitken and a number of members of all parties expressed concern about the wide-ranging nature of that amendment, which could, arguably, have impinged on freedom of speech. The Government withdrew its amendment at stage 2 and said that it would return with a revised formulation at stage 3.

The Scottish Conservatives recognise the issue that has arisen from the appeal court ruling in the Harris v HMA case—that some public element must be present for a breach of the peace to occur—and the need to resolve that issue. At committee, the cabinet secretary discussed the concern that the decision in the Harris case had made it more difficult to prosecute criminal behaviour that had arisen from domestic disputes and in other circumstances in which there is not necessarily a public element.

It was hoped that the Scottish Government’s amendment at stage 3 would have been narrower in its drafting than what we are faced with. I would not suggest that my amendment 188 is perfect; it does not take account of domestic abuse in civil partnerships or abuse towards an ex-partner or a partner who does not reside with the victim, which it should. However, its imperfections aside, its aim was to limit the offence to a person in a defined relationship and to allow more scope for the police and prosecutors to deal with domestic abuse incidents. The scope of the offence that is created in amendment 63 applies far beyond domestic relationships or protecting the police from abuse. It can apply to one-off comments by anyone anywhere in Scotland, and carries a penalty of up to five years in prison. I believe that, in its current form, the offence created in amendment 63 could inadvertently interfere with civil liberties and free speech, as amendment 378 could have.

I lodged amendment 188 to encourage further debate on how best to tackle the consequences of the ruling in the Harris case. I agree with the Government’s intention and that action needs to be taken to allow the police and fiscals to charge and prosecute behaviour that would previously have been dealt with under breach of the peace.

My amendment, which was originally drafted by Labour’s former Advocate General for Scotland, Lord Davidson, goes some way to demonstrating how the scope of such provisions could and should be narrowed. It is important that we act on the issue as quickly as possible, but that is not an excuse for badly drafted or wide-ranging provisions with unintended consequences. We must ensure that the issue is addressed without threatening freedom of speech. I hope that the Scottish Government will seek to withdraw amendment 63 and will go back to the drawing board and introduce a narrower provision that deals with the specific issues that have been highlighted.

Robert Brown (Liberal Democrat, Glasgow)

As has been said, this group of amendments deals with the consequences of the introduction of the separate offence of stalking, which was approved at stage 2, and the issues surrounding the definition of breach of the peace, following the decision in the Harris case, which indicated that such an offence could normally not be committed in private. That raised issues about the ability to prosecute domestic abuse in some situations and to charge people with offensive behaviour towards the police inside a police station.

I do not think that there is any difference over the policy intent. Everyone wants to sort out the breach of the peace problem, but there are three possibilities on offer. I suggest that we can dismiss John Lamont’s amendment 188 fairly readily, although I do not dismiss the arguments that he gave in support of it, which were mainly valid. As he said, the amendment is reasonable in its own terms, but it is fairly clearly too narrow, in that it deals only with domestic abuse and does not cover civil partnerships. The central concern is that we do not want to criminalise actions that are expressions of opinion, even if they might distress other people. That is a fair point.

The second option is Government amendment 63, which is a somewhat reduced version of an attempt to establish what was more or less a statutory version of breach of the peace at stage 2, but which was withdrawn. The version in amendment 63 is open to the same objections as the earlier amendment was. It is a major change in the law that has not been consulted on. It could have all sorts of unintended consequences. I am not even sure that it gets rid of the need for a public element to the crime and, if it does, it probably places breach of the peace in a private place on a par with breach of the peace in public, which goes significantly beyond reversing the Harris judgment. In short, amendment 63 is cumbersome, does not add anything in clarity and loses a lot of the flexibility of a very useful common-law offence. Furthermore, it does not replace breach of the peace, but sits alongside it in uneasy symbiosis.

My amendment 189 offers a more satisfactory way forward, which is to modify only to the extent necessary the definition of the common-law breach of the peace crime. It brings in the Harris definition of behaviour that leads to a

“mischief to the public peace”.

It says that the fact that something happened in private does not by itself stop it being a crime, but it leaves open the existing flexibility of definition and keeps in the likely consequence of fear and alarm. I think that my amendment does the trick and I hope that ministers and the Parliament will be attracted to it. However, like John Lamont, I believe that, if members are not satisfied with the amendments that are on offer, it would be better to go back to the drawing board and consider the issue again.

The stalking provisions were, rightly, a big success for Ann Moulds and her campaigners at stage 2. I support the Government amendments that will tighten up the provisions on stalking, but I am concerned that the new stalking offence might accidentally penalise people in situations in which they should not be penalised, particularly in the realm of public protest or industrial dispute. I gave the example of a picket at someone’s workplace, which would normally be regarded as legal, but which could cause fear and alarm in other people. Similar concerns could be expressed about a protest march or demonstration. The response was that that would be covered by the defence of reasonableness in section 31B(5)(c). The minister went on to say that the defence that I had proposed was too wide. It would certainly knock out stalking, but there are other offences of assault, breach of the peace, intimidating behaviour and so on.

The defence in section 31B(5)(c) might be okay, but it seemed to me that the interrelation of the right of public protest, which is more a tolerance to do what is not forbidden, with the new stalking crime could in practice narrow what is allowed by way of demonstration or protest. That is the basis of my amendment 14. It is helpful and, at worst, does no harm. I hope that members will consider very carefully the situation and the important implications that come from it.

Alasdair Morgan (Scottish National Party, South of Scotland)

I can give the remaining speakers in the group a maximum of one and a half minutes.

James Kelly (Labour, Glasgow Rutherglen)

I will run through the issues briefly. I support the Government amendments that have been lodged in response to the amendment on stalking that Rhoda Grant lodged at stage 2. I pay tribute to her work on the issue and to the work of Ann Moulds and the anti-stalking campaigners.

I am minded to support Government amendment 63. As others have said, the provision has been tightened up and fine tuned since a similar amendment was debated at stage 2.

We have had concerns raised with us by churches that the amendment would inhibit their ability to take their religious teachings on to the street. I would be interested to hear the minister address those concerns in summing up.

We do not support amendment 188, in the name of John Lamont, which we believe is too restrictive as it relates only to those who are married or are in cohabiting relationships and does not deal with potential violence against children, elderly people or civil partners.

We do not support amendments 14 and 18, in the name of Robert Brown, which we believe are unnecessary as what they propose is covered by other amendments or existing law.

Nigel Don (Scottish National Party, North East Scotland)

Amendment 63 replaces stage 2 amendment 378, which we were not very happy about when it came to the Justice Committee. I point out to James Kelly and others who are concerned about freedom of speech that, if amendment 63 is agreed to, the bill will say that, to commit the offence, a person has to behave in a threatening and abusive manner, has to cause fear and alarm and has to intend to do so or be reckless as to whether they are doing so. The offence under the suggested provision is very much narrower than the one that was suggested at stage 2. It is very much narrower than the offence of breach of the peace, which would cover all that and a lot more. This response to the decision in the Harris case has created a very narrow offence. I do not think that we need have any worries about those who wish to preach anything at all. If the preaching of any gospel is threatening and abusive and likely to cause fear and alarm, I suggest that it should not be so preached.

One of the other issues that emerged is that the original amendment 378 did not have a title, which caused us some problems. When we were considering serious and organised crime—

Alasdair Morgan (Scottish National Party, South of Scotland)

Wind up please.

Nigel Don (Scottish National Party, North East Scotland)

I am sorry. I will stop.

Alasdair Morgan (Scottish National Party, South of Scotland)

I am obliged.

Patrick Harvie (Green, Glasgow)

Of the major amendments in this group, the Government’s amendment seems the most preferable, for reasons that I do not have time to go into.

I welcome amendment 14. The minister’s concerns about it are probably not legitimate. If behaviour that is unreasonable is part of a public protest, it seems to me that the public protest is unreasonable. Reasonable behaviour being part of the public protest should mean that the protest itself is reasonable.

The amendments to which I object—or which I at least question—are the two that look on the surface to be very minor amendments to section 31B, on the offence of stalking. I had concerns when that section was introduced that it perhaps went too far and could cover behaviour that should not be considered criminal. Those concerns were addressed and allayed to some extent earlier on. However, amendments 70 and 71, which will add “any means” of communication and change “tracing” internet activity to “monitoring” internet activity cause me concern. I am thinking in particular of the recent internet campaign against Carter-Ruck and Trafigura. Carter-Ruck—a legal firm vile enough, I am sure, to use any legal option to try to oppose internet activism—would no doubt be able to argue that monitoring internet activity was for the most part what people were doing. To add “any means” of communication to the section will leave open the possibility that honestly non-intrusive and passive internet activity—normal use of the internet—could be covered. I am sure that that is not what is intended, but I think that we run that risk if we agree to amendments 70 and 71.

Rhoda Grant (Labour, Highlands and Islands)

I support Government amendment 32, as opposed to amendment 188, in the name of John Lamont. He said in his opening comments that there were problems with it in that it covered only people who were married or cohabiting in a heterosexual relationship. We all know that people who are fleeing an abusive relationship are in most danger. Amendment 188 would not help such people. It would not help same-sex couples, elderly people who are being abused in their own home and children who are being abused. I urge the Parliament not to support amendment 188, although I recognise that it was intended to be helpful.

I thank the Government for its amendments to section 31B, on stalking, and for the work that it did with me and Ann Moulds to ensure that we were happy.

I do not support amendment 14, because it is not required. The defences in section 31B include showing that behaviour was lawful and reasonable. Any industrial action or public protest would fall into those categories.

Patrick Harvie expressed concerns about the insertion of the words “any means” and “monitoring”. The crime of stalking must involve a course of conduct, not one incident. Stalking is insidious and involves behaviour that could be legal on its own.

Patrick Harvie rose—

Do I have time to take an intervention?

The Deputy Presiding Officer indicated disagreement.

I am sorry.

The reference to a course of conduct means that, if somebody watches someone else’s activity but does no other activity to form the crime of stalking, the problem will not arise. I hope that I have convinced Patrick Harvie to back amendments 70 and 71.

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

I echo James Kelly in paying tribute to Rhoda Grant, whom we thank for raising the issue. Like him, I pay tribute to Ann Moulds.

We seek to address two matters, one of which is stalking, which is entirely unacceptable. We need to ensure that statutory provision to tackle that is in place. As I said, we thank Rhoda Grant and Ann Moulds for raising the issue and for their co-operation thereafter.

The second issue is ensuring that breach of the peace covers incidents that occur in a non-public place, such as officers being abused because of their service, which they should not have to endure, or cases of domestic violence when no witnesses are about.

I assure James Kelly that we recognise the fears that individuals and the Justice Committee were correct to express. Amendment 63, which is an amended version of a stage 2 amendment, restricts the offence to “Threatening or abusive behaviour”. Removing the reference to distress will ensure that we do not inadvertently criminalise conduct that should not be criminal and which we do not intend to catch, while providing prosecutors and the police with a power that is wide enough to deal with the other matters. We are aware of and have taken on board the concerns of some in the Christian community and we have changed what was proposed in the stage 2 amendment, which we did not move.

I assure James Kelly and the whole Parliament that we have taken the appropriate action to deal with stalking and with breach of the peace offences in domestic violence situations or against police officers. We continue to guarantee that those who have Christian views can express their views without coming before the courts.

Alasdair Morgan (Scottish National Party, South of Scotland)

The question is, that amendment 63 be agreed to. Are we agreed?

Members: No.

There will be a division.

Alasdair Morgan (Scottish National Party, South of Scotland)

The result of the division is: For 92, Against 29, Abstentions 0.

Amendment 63 agreed to.

Amendment 188 not moved.

Section 31B—Offence of stalking

Amendments 64 to 67 moved—[Kenny MacAskill]—and agreed to.

Amendment 14 moved—[Robert Brown].

The question is, that amendment 14 be agreed to. Are we agreed?

Members: No.

There will be a division.

Alasdair Morgan (Scottish National Party, South of Scotland)

The result of the division is: For 16, Against 105, Abstentions 0.

Amendment 14 disagreed to.

Amendments 68 to 78 moved—[Kenny MacAskill].

Does any member object to a single question being put on amendments 68 to 78?

Patrick Harvie (Green, Glasgow)

I object.

Alasdair Morgan (Scottish National Party, South of Scotland)

Are there particular amendments that you wish to be taken separately?

Patrick Harvie (Green, Glasgow)

Amendments 70 and 71.

Alasdair Morgan (Scottish National Party, South of Scotland)

We will go through the amendments.

Amendments 68 and 69 agreed to.

The question is, that amendment 70 be agreed to. Are we agreed?

Members: No.

There will be a division.

Alasdair Morgan (Scottish National Party, South of Scotland)

The result of the division is: For 117, Against 3, Abstentions 0.

Amendment 70 agreed to.

The question is, that amendment 71 be agreed to. Are we agreed?

Members: No.

There will be a division.

Alasdair Morgan (Scottish National Party, South of Scotland)

The result of the division is: For 117, Against 3, Abstentions 0.

Amendment 71 agreed to.

Amendments 72 to 78 agreed to.

After section 34C

Amendment 6, in the name of Marlyn Glen, is grouped with amendments 79 and 7.

Marlyn Glen (Labour, North East Scotland)

I acknowledge and pay tribute to the work that Trish Godman has done on the issues that are addressed in the amendments in the group, which seek to introduce new sections into the Sexual Offences (Scotland) Act 2009 under which it would be illegal both to engage in and to advertise paid-for sexual activity. The penalty for so doing would be

“A fine not exceeding level 3 on the standard scale”.

Margo MacDonald (Independent, Lothians)

Will the member give way?

Marlyn Glen (Labour, North East Scotland)

I would like to get started.

Basically, the first new section would make it an offence to buy sex using any form of payment, including payment in kind and presents.

The amendments are an attempt to recognise and deal with the exploitation, violence and abuse that are a reality for the majority of individuals—female and male—who sell sex. The amendments focus on the buyer of sex, acknowledge the harm of prostitution, challenge its acceptance and recognise the analysis of prostitution as being on the spectrum of violence against women. This Government accepts that analysis, as did the previous Government.

Margo MacDonald (Independent, Lothians)

Will the member now give way?

Marlyn Glen (Labour, North East Scotland)

I would like to move on.

Margo MacDonald (Independent, Lothians)

Will you define “sexual activity“?

Alasdair Morgan (Scottish National Party, South of Scotland)

Order.

Marlyn Glen (Labour, North East Scotland)

Thank you, Presiding Officer.

For too long, interventions have focused solely on the women who are engaged in prostitution—in the main, it is women—and not on demand. It is high time that we started to work together to control the demand for paid-for sex and take further the provisions that we introduced in the previous session to tackle so-called kerb crawling. The legislation in that regard provides a deterrent that works. Members know that from examples in our constituencies where it has been used to excellent effect. We now need a further deterrent to curb the demand for buying sex. In particular, work must be done before the commencement of construction work for the Commonwealth games.

The amendments are not directed at women working in prostitution, but the dangers of commercial sexual exploitation cannot be ignored. Routes out of prostitution must continue to be recognised and supported.

At stage 2, concern was expressed about driving prostitution indoors and underground, but organisations such as the trafficking awareness-raising alliance have no difficulty finding and supporting women now, whatever their circumstances. I am confident that TARA and other, similar organisations will adapt and continue their services in new circumstances.

The bill is extremely wide ranging. I thank the members of and clerks to the Justice Committee for the work that they have put into it. However, I suggest that agreeing to amendments 6 and 7 would make a massive difference to the lives of many women, mainly young people, who could be helped to make different choices in their lives. If we take a lead, we can challenge the acceptance of and address the demand for paid-for sex.

I move amendment 6.

Richard Baker (Labour, North East Scotland)

At stage 2, we made clear our position that the best way of improving the law to deal with prostitution in Scotland is through the amendments that were originally lodged by Trish Godman and have been lodged for stage 3 consideration by Marlyn Glen. There is a persuasive argument that it is neither effective nor equitable to punish in law only those who sell sex, who are often vulnerable victims of abuse or self-abusers, when the behaviour of those who purchase sexual activity is not dealt with in the same way.

We already know that women are being trafficked into Scotland for the purpose of sexual exploitation. John Watson of Amnesty International highlighted the challenge that we face when he pointed out that

“there have been no prosecutions for trafficking offences in Scotland, although there have been well over 100 in England and Wales.”—[Official Report, Equal Opportunities Committee, 15 June 2010; c 1865.]

I refer to the issue of trafficking because fears have been expressed across the chamber that there may be an increase in the number of women who are trafficked to Scotland for the purposes of prostitution as we approach the 2014 Commonwealth games. Parliament must set in place the right legislative framework to help us to deal best with the problem.

Although our preference is to change the law through the amendments in the name of Marlyn Glen, that proposal was rejected in committee and, I fear, will be rejected again today. I have lodged amendment 79 because not to include that proposal in the bill would be to leave Scotland with weaker laws to tackle prostitution than the rest of the UK. That would only provide encouragement to those who, right now, may be looking to the 2014 Commonwealth games as an opportunity to profit from the misery of trafficked women.

Nigel Don lodged the same amendment at stage 2 but withdrew it because it introduces strict liability. That is necessary, or it will be far too difficult to secure a conviction under the proposal. The previous UK Government concluded that the measure was compatible with European law, and it has been enacted in England and Wales. It will be an effective way of ensuring that those who pay for sex are forced to consider the circumstances of the prostitute who will provide the sexual services, while protecting those who have not chosen to be involved in prostitution. Making those who would purchase sex consider that there may be consequences for them will reduce demand for the purchase of sex and, hopefully, reduce trafficking, too.

We must challenge those who purchase sex to recognise the consequences and impact of their actions for the victims of prostitution and trafficking and, if they are convicted, for themselves. We cannot do that without changing the law. If Parliament does not do that today, it will not properly help those who find themselves in the appalling misery of being sexually exploited so that others can profit. There has been much talk about taking action on the issue—it is time to act by changing the law. We must not leave ourselves in a situation where our laws on this important and destructive area of crime are weaker than those in the rest of the UK. That is why I seek support for amendment 79, which I will move if the other amendments do not succeed.

Alasdair Morgan (Scottish National Party, South of Scotland)

I am exercising my power under standing order 9.8.4A(c) to extend debate beyond the next time limit, to prevent the debate from being unduly constrained. However, members will need to constrain themselves to one and a half minutes.

Bill Aitken (Conservative, Glasgow)

There are difficulties with what is proposed. When the Justice Committee considered the matter, we called a number of witnesses, in a constructive attempt to get evidence on it. Frankly, that evidence was mixed. There is a unanimity of view in the chamber that no person should be forced into prostitution. The law is already in force to ensure that, where violence is involved, that is dealt with. The same is true of people trafficking. That is as it should be, because people trafficking is a very serious matter. However, there is no great evidence that it is a serious issue in Scotland.

Richard Baker (Labour, North East Scotland)

Will the member give way?

Bill Aitken (Conservative, Glasgow)

I am sorry, I do not have time.

The evidence that the police gave to the Justice Committee was that the approach that has been proposed would have a negative impact, in that it would inhibit the police’s ability to investigate crime and bring to book those responsible.

I suspect that the members who lodged amendments 6, 7 and 79 at stage 3 are mindful of the recent appalling crimes in Bradford and other assaults on women who work as prostitutes. We are all very unhappy in that respect. However, we need to examine the matter much more deeply and in a more mature way. We all want to do what we can to eliminate prostitution, but we must acknowledge the realities and difficulties that are involved. There is not too much merit in the amendments.

Robert Brown (Liberal Democrat, Glasgow)

This is a valid debate. Many good points have been made, most of which I have some sympathy with. However, I remain opposed to amendments 6, 7 and 79, partly for the reasons that the convener of the Justice Committee has just given.

I will not repeat the argument that we made at stage 2, which was, in essence, that the approach that is proposed in amendment 6 represents a major change in an area that attracts widely differing views—and views tend to differ in different parts of Scotland. It seems unlikely that the oldest profession would be got rid of by an amendment to a Scottish Parliament bill that has not been fully consulted on or considered. There would be considerable scope for unintended consequences of a difficult nature.

I have more sympathy with amendment 79, in Richard Baker’s name, which focuses on trafficking and coercion. I have spoken out on such matters in the past, and I do not accept Bill Aitken’s point that there is no evidence that trafficking is an issue. We need only to consider the number of people whom TARA supports to appreciate the nature of the problem. The problem is not that trafficking does not happen in Scotland but that there have been no prosecutions for trafficking in Scotland.

However, the approach in amendment 79 is not likely to offer a way forward. It is an objectionable principle for a person to suffer the rigours of the law for factual aspects that he does not know about or which it was not reasonable for him to know about, which is the express objective of amendment 79, as Richard Baker conceded. It might be possible to penalise a person who had paid for sex with a person whom he knew had been trafficked, or who was reckless as to whether the person had been trafficked, but that is not the approach in amendment 79.

Elaine Smith (Labour, Coatbridge and Chryston)

I am grateful for the opportunity to speak in support of amendments 6 and 7, in Marlyn Glen’s name.

Prostitution is predominantly male violence against women and children. The Government in Scotland has accepted that. Prostitution is not a career choice and it is not a profession, and women do not aspire to such a lifestyle. People who are involved in prostitution are generally vulnerable and get involved in it due to reasons such as previous abuse, poverty, substance misuse or trafficking.

The cloak of secrecy should be lifted from the men who buy sex. The social harm of their behaviour must be recognised and acknowledged. Prostitution is not a career choice or a simple business transaction; it is violence, it is exploitation and it is abuse. Women go to prison for it, but if anyone should go to prison it should be the pimps and the purchasers, not their victims.

Criminalising buyers would undoubtedly reduce demand for prostitution. I urge members to support amendments 6 and 7. We have an opportunity to make a real difference.

Stewart Maxwell (Scottish National Party, West of Scotland)

I very much support the intention behind the amendments in the group, although I cannot support the amendments themselves.

As we discussed at stage 2, there are problems with the approach that is proposed. I agree with Marlyn Glen’s comments and I pay tribute to the people who work to support and help women out of prostitution. However, I agree with much of what Bill Aitken said, particularly about the evidence that the committee heard at stage 2. I also agree with much of what Robert Brown said.

I remain concerned about how “sexual activity” is defined. I will not go back over the debate that we had on the matter, in some detail, at stage 2. There are other basic questions and problems to do with the approach that is proposed in amendment 6. The activity goes on behind closed doors, so how does someone know what occurred and whether payment was involved, particularly if payment was in kind? Where will they get evidence for a prosecution? Who will be the witnesses? I suggest that none of the people involved will want to complain to the police or make a statement about what has or has not occurred. In other words, we would put the police in an impossible position, because the provisions would be unenforceable.

Many of the issues that I have raised could be dealt with, but they are not dealt with by amendments 6, 7 and 79. My main objection to the amendments is that the subject is too serious and complex to be dealt with by stage 3 amendments. If the matter is to be addressed properly, detailed study and research will be required before recommendations can be made and we can decide how to move forward. I urge the Parliament to reject the amendments.

Margo MacDonald (Independent, Lothians)

I feel a Danny Alexander moment coming on: I can scarcely add to what Stewart Maxwell said on the amendments in this group.

I appreciate the intensity and belief that lie behind much of the opposition to what I have campaigned for. However, we must define our terms. What are sexual activities? President Clinton’s idea of what amounted to sex was different from Monica Lewinsky’s. I am not being facetious: we have not attempted to say whether “sexual activity” means full intercourse or applies to people who want to engage in rather deviant behaviour but not sex. Are they allowed to pay for that or not, and what does “payment” amount to? Is it a nice night out at the casino and a visit to the races, getting the rent paid or gifts of jewellery? That is real life and real prostitution.

We do not have evidence of trafficking in Scotland because the police here are much better informed about what goes on in what we now must regretfully call the sex industry. Therefore, I urge all the members who want the Parliament to improve the legislation on coercion and violence against women to reject all the amendments in the group and to tackle the issue holistically at a proper and later date.

Johann Lamont (Labour, Glasgow Pollok)

We do not need to call prostitution the sex industry. It is not a job or a lifestyle choice.

If the amendments in the group are not the way forward, it is incumbent on the Government to propose something else. We will not necessarily eradicate prostitution, but we have to address who the victims are. Marlyn Glen’s amendments 6 and 7 focus our attention on that—they do not accept that we have to live with prostitution or that there is something inevitable about it.

There are no exchanges of jewellery for prostitutes on the streets of Glasgow. We need to give them help and support rather than implying that it is another job choice when clearly it is not.

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

Nobody disputes that human trafficking is a heinous offence or that prostitution is a deeply complex matter in which people are abused and women are frequently the victims. Johann Lamont is correct that we have to take action. That is what we are doing, but we must ensure that we do not legislate in haste and repent at leisure in relation to this complex matter.

The committee has already taken evidence from a variety of sources. Indeed, the police and others have been wary about what we should do. What are we doing? First of all, significant action was taken in the previous parliamentary session to deal with on-street prostitution. There was to be further investigation into off-street prostitution and that, to some extent, is what we now seek to do because, after all, human trafficking tends to be off street by nature.

We introduced the Sexual Offences (Scotland) Act 2009, which brought in measures to ensure that we tightened up the legislation, so action has been taken. In the bill, action is being taken to increase the penalties for those who brothel keep because the levels of brothel keeping that were being dealt with were entirely unacceptable.

We must also recognise that the Equality and Human Rights Commission is undertaking an inquiry into human trafficking, which is chaired by Baroness Helena Kennedy. She has undertaken to include in that inquiry an investigation into off-street prostitution.

The Government has taken action. Let us see what Helena Kennedy concludes. The issue is deeply complex but I assure Johann Lamont and others that, if Helena Kennedy highlights matters that require legislation, we will not hesitate to take the necessary action.

Let us listen to what Helena Kennedy and others come back with and take appropriate action then.

Marlyn Glen (Labour, North East Scotland)

I am conscious of time, so I will sum up the debate by repeating that we should not miss this opportunity. Major change is required to stop commercial sexual exploitation. Prostitution cannot be regarded as a career choice, as has been said, nor as just another industry with workers.

In reply to Stewart Maxwell, I say that, sadly, similar arguments to his used to be made against the introduction of legislation against domestic abuse.

I ask members to take a lead and to challenge the acceptance of, as well as to address the demand for, paid-for sex. I ask them to vote for amendment 6.

Alasdair Morgan (Scottish National Party, South of Scotland)

The question is, that amendment 6 be agreed to. Are we agreed?

Members: No.

There will be a division.

Alasdair Morgan (Scottish National Party, South of Scotland)

The result of the division is: For 44, Against 78, Abstentions 0.

Amendment 6 disagreed to.

Amendment 79 moved—[Richard Baker].

The question is, that amendment 79 be agreed to. Are we agreed?

Members: No.

There will be a division.

Alasdair Morgan (Scottish National Party, South of Scotland)

The result of the division is: For 44, Against 78, Abstentions 0.

Amendment 79 disagreed to.

After section 37A

Amendment 189 not moved.

Section 38—Prosecution of children

We come to group 13, on the age of criminal prosecution. Amendment 190, in the name of Robert Brown, is the only amendment in the group.

Robert Brown (Liberal Democrat, Glasgow)

The age of criminal responsibility has been a difficult and, to an extent, controversial subject. I am disappointed that the Government has not fully grasped that and raised the age of criminal responsibility; instead, it has raised just the age at which prosecutions can take place. It may be that it intends to deal with the subject properly in the context of the Children’s Hearings (Scotland) Bill. However, as the matter stands, Scotland is still left open to criticism under the United Nations Convention on the Rights of the Child; the bill also leaves issues about DNA retention and children’s criminal records unsatisfactorily messy.

My amendment is designed to take matters a stage further and to give ministers power by affirmative instrument—obviously, with the consent of Parliament—to raise further in due course the age at which children can be prosecuted. There is a significant issue only at the age of 15, when the number of offenders that are prosecuted goes up substantially. Below that, there are few prosecutions of 12, 13 or 14-year-olds. Providing that the powers of the children’s panels are adequate to protect the public, my view is that it is objectionable to put underage children through an adult court process. There is also another oddity, which is that the divide for the Sexual Offences (Scotland) Act 2009 is the age of 13, not 12. The Justice Committee adverted to that point earlier on. Interestingly, the Criminal Procedure (Scotland) Act 1995 even provides that no child under 14

“shall be permitted to be present in court during any proceedings against any other person”,

except as a witness; obviously, a different view is taken about people who are charged.

At eight, Scotland had the lowest age of criminal responsibility in Europe, modified only by the fact that most offenders of that age go to hearings. Eight remains the age of criminal responsibility, but even the age of 12 for prosecution is pretty low. I hope that amendment 190 will give us scope to reconsider the matter in a reasoned atmosphere when the time is right.

I move amendment 190.

Richard Baker (Labour, North East Scotland)

There has been extensive debate during the bill process about whether the Scottish Government’s proposal to change the age of prosecution to 12 is the correct one, or whether the age of criminal responsibility itself should be changed. For our part, the crucial issue is to ensure that it should no longer be possible for children under 12 to be prosecuted in adult courts. I believe that the recent case in England in which two children who were accused of attempted rape were tried in an adult court highlighted the concern that that is not the appropriate forum for dealing with such matters, particularly as we have a successful children’s hearings system with access to the same disposals as the courts have for children who are convicted of such offences. It is therefore difficult to see what could be gained by having such offences dealt with in adult courts.

There has been wider debate around changing the age of criminal responsibility. I believe that further debate on the issue is likely to focus on that point rather than on changing the age of criminal prosecution, as is suggested in Robert Brown’s amendment 190. I also believe that his proposal to change the age of criminal prosecution, rather than the age of criminal responsibility, would require other changes to the children’s hearings system and would need more extensive parliamentary consideration.

Therefore, I cannot see what could be gained by dealing with the matter by changing the age of criminal prosecution by statutory instrument rather than through that fuller debate. As Robert Brown said, we need to reconsider the whole issue, for which the full parliamentary procedure for primary legislation will be required.

Alasdair Morgan (Scottish National Party, South of Scotland)

You must wind up, please.

Richard Baker (Labour, North East Scotland)

I believe that Parliament will return to these issues in the future. I concede that many of the age levels might be arbitrary, but I am not persuaded by the case that has been made by Robert Brown in amendment 190. There are likely to be further opportunities for fuller debate, to which we look forward.

Bill Aitken (Conservative, Glasgow)

Amendment 190 deals with a sensitive matter that has already attracted a considerable amount of debate. There can be no doubt that Scotland has to some extent been out on a limb, although I comment in passing that I am a bit fed up of being lectured on such matters by people from other jurisdictions that have scant regard for human rights more widely.

That said, the bill as it stands recognises that we need to do something while retaining a level of protection for wider society. In extreme situations, youngsters can do terrible things. Although the Bulger case and the recent case in Doncaster that involved two young boys are highly exceptional, we cannot permit a society in which other children—who are often the victims in such cases—have no protection.

The children’s hearings system in Scotland is far from perfect, but it provides a valuable facility for dealing with youngsters that is missing from many of the other jurisdictions where people have been making criticisms. It is worthy of note that children under the age of 12 have been prosecuted in only a handful of cases in the past 10 years. Against the background of that fact, I am content that the bill as it stands does what is necessary and that Robert Brown’s amendment 190 should be rejected.

Alasdair Morgan (Scottish National Party, South of Scotland)

I ask the cabinet secretary to respond briefly to the debate.

Kenny MacAskill (Scottish National Party, Edinburgh East and Musselburgh)

We appreciate the spirit and intention behind what Robert Brown’s amendment 190 seeks to achieve. However, as Richard Baker said, this sensitive matter has already been discussed and debated quite extensively by the committee during stage 2. It appears to us that we should leave matters as they are. On this side of the chamber, members of my party are prepared to consider moving on from where we are at some future stage. However, given the sensitivity of the issue, it should be dealt with not through subordinate legislation but through the full majesty of primary legislation, which is more appropriate.

On that basis, while recognising the spirit of what he is trying to achieve, and following the full discussion that we have had today, I ask Robert Brown to withdraw amendment 190.