I thank Lewis Macdonald for articulating well his reasons for lodging the amendments, and for his consistent interest in the issue—not only from the side of the table at which he is sitting now, but when he sat on this side of the table during the time when his party was in government. As has already been articulated this morning, we all have a joint interest in ensuring that the fines system will work better than it does at the moment.
I will try to address some of the points that have been made. A number of committee members have expressed reservations about the amendments in the name of Lewis Macdonald. I have reservations for many of the same reasons—in particular, the lack of an evidence base on whether this course of action is working. That said, I realise that committee members including John Finnie, who spoke just a moment ago, have challenged the Government to say what might work, if what is being proposed is not the answer. I will try to address both points. I think that it is hugely important that I set the context, before I do that.
Fine collection rates in Scotland are very high. At the end of February, the Scottish Courts and Tribunals Service released figures showing that 89 per cent of the value of sheriff court and justice of the peace court fines that were imposed in the three years between 2015 and 2018 either had been paid or were on track to be paid.
The remainder will, of course, be a hard nut to crack. I appreciate that Lewis Macdonald is trying to fix that situation through his amendments, but I am not convinced that amendment 1 is the best way of doing so. As others are, I am concerned about the circularity of creating a new offence and attaching the penalty of a fine where the individuals concerned have already demonstrated failure to engage with fines enforcement officers. Liam McArthur rightly asked about the evidence that shows that the approach would work. Our sense that the offence would be likely to be used but little comes from the fact that in England and Wales it is not used to the extent that people might think it would be used, and from experience there that suggests that the declaration of income form is not helpful at all.
In any event, there are technical issues with the drafting of amendment 1—the two most important being the lack of a deadline for filling in the form and the lack of provisions with regard to the person having a reasonable excuse. The lack of a deadline would make it impossible to know when the offence was actually committed, and the lack of provisions on having a reasonable excuse would make it a strict liability offence. I am extremely reluctant to take that approach, because people can fail to receive notice through no fault of their own, or might have perfectly good reasons for non-compliance, including serious illness, injury and so on.
There are other more technical difficulties with amendment 1 that I can discuss if the committee so wishes, but—I say this is in direct response to John Finnie—the Government will be working on arrangements that will make it unnecessary to seek information through declaration of income forms. Instead, it will be possible for the courts service to obtain relevant information directly from the Department for Work and Pensions and from Her Majesty’s Revenue and Customs. The service has been seeking that power for some time, but reserved legislation was necessary, and that gap has now been addressed by the coming into effect of the Digital Economy Act 2017. Powers in that act enable information to be shared between public bodies for the purposes of taking action on debt that is owed to, and on fraud against, a public authority.
If they are approved, the regulations that we are planning will enable Scottish bodies to move towards using the debt and fraud powers. We plan to begin drafting, consultation on and scrutiny of the regulations in the next few months, with a view to laying draft regulations before the Scottish Parliament, where they will be subject to affirmative procedure, during 2019.
If the regulations are approved, the Scottish Courts and Tribunals Service will be able to take the necessary steps towards developing a data-sharing arrangement with the DWP and HMRC. Directly obtaining information from the DWP and HMRC would be a more effective way of dealing with the issue, without creating another circular criminal offence, particularly for individuals who have already proved themselves to be reluctant to engage with the courts service.
Given that that is a better way of improving the fines enforcement system, and given the difficulties that I have explained in respect of Mr Macdonald’s amendment 1, I hope that he will not press it. If he does so, I will ask the committee to reject it.
I have concerns about both the content of amendment 102 and its legislative competence. On drafting difficulties, there are existing regulations that have been made under section 24(1)(a) of the Criminal Justice Act 1991: the Fines (Deductions from Income Support) Regulations 1992. Those regulations already provide that the court may, after making inquiry as to an offender’s means,
“apply to the Secretary of State asking him to deduct sums from”
the relevant benefit, at any time where a fine has been imposed.
Given that the courts already have that power, I am not clear what the purpose is of re-stating it through amendment 102. Similarly, proposed subsection (2) in the amendment does not seem to add anything to the existing powers in section 226E of the Criminal Procedure (Scotland) Act 1995, which already gives the fines enforcement officer the power to
“request the relevant court to make an application”.
Deduction from benefits for the purpose of meeting an individual’s debts are explicitly reserved. The 1992 regulations on that topic were made and subsequently amended by the UK Government. The application is to the UK secretary of state. If amendment 102 were to be interpreted as a restriction on a court’s ability to apply for a deduction from benefits order under the 1992 regulations, it might relate to reserved matters, which could lead to a vires challenge to the legislation as a whole. Therefore, we cannot support amendment 102.
I hope that Mr Macdonald will not move amendment 102, for reasons relating to competence and its content. If he moves amendment 102, I will ask members not to support it, should it be pushed to a vote.