'All of us are contemplating things we just never would have imagined': interview with Humza Yousaf
Humza Yousaf seems to have mixed feelings about the lockdown.
Working from home can bring challenges for everyone, but for the Justice Secretary the situation brings its own particular distractions given his home office is within reach of his 11-month-old, Amal. And while the change has allowed him to spend more time with her, it does bring risks. Not least the fact she can now intervene, vocally, in governmental and intergovernmental meetings.
He tells Holyrood: “In terms of advantages, in between phone calls I can pick up my daughter, I can have some cuddles, I can play with her and feed her lunch if time allows. I make her breakfast in the morning, which was never really the case before. Most times I was going to Holyrood in the morning she was still asleep and by the time I got back. If I was lucky, I’d catch 15 minutes before bedtime. That would be the only times, certainly on the days I was in Holyrood, that I’d be able to see her, so it’s nice to be able to manage between calls and when there’s a gap, to spend time at home.
“Obviously it doesn’t come without distractions, if anyone has children they’ll know this is the stage they start walking or crawling. She is a walker who can almost reach the door handle, if it’s not closed properly she can force it open. I don’t know what we are feeding her but she’s basically hench. I mean, she’s muscle. She’s got some amount of strength, she can open doors that are closed, she grabs things, I like to think I’d be a match for an 11-month-old baby, but at times it’s questionable.
“I suppose everyone is feeling this to an extent if they have a family but this is time we’ll not get back. Being able to spend this much time with the children during a working week is something that I’ll never get again I suspect, certainly for this period of time, so I am trying to enjoy it as much as I can.”
Any expectation that we can stop people dying in our custody, I am afraid, is just not an expectation we can meet
But while there are advantages to the lockdown, clearly there has been no let up in the amount of work arriving on the Justice Secretary’s desk. Yousaf has had a phenomenally busy couple of weeks, with legislation produced in response to COVID-19, and rushed through parliament in a day handing the police new emergency powers to enforce social distancing and giving ministers powers to release some prisoners early.
The bill covered a huge range of areas, and four ministers opened the debate, but clearly the most eye-catching moment was Yousaf’s decision to drop plans to hold trials without juries.
The proposals had provoked a huge outcry from the legal profession, as well as from some within the SNP, and with concern so widespread the Scottish Government felt it had no choice but to change course. Announcing the change in position, Yousaf instead launched a three week consultation on alternative ways of keeping courts operating.
The Justice Secretary himself admits to being uncomfortable with the idea, but with the pandemic bringing courts to a standstill, and creating huge waits for both victims and those accused of crimes, he felt he had little choice.
In fact it is a mark of just how extraordinary the current situation is that the response from opposition parties themselves was markedly measured. The government had backtracked – possibly temporarily – on plans to remove a fundamental cornerstone of the justice system, and in normal circumstances you might expect calls for resignations.
“Yeah, if not calls for resignation then the opposition, I am certain, would be pointing out absolute abject humiliation for the minister involved as well as the government involved,” he says. “If not calls for resignation there would be quite a lot of showboating around that fact from the opposition. In fairness that wasn’t the tone of the debate at all.”
He adds: “All of us are contemplating things we just never would have imagined would be in our thinking as government ministers... Never in normal times would you contemplate giving those sorts of extreme powers over to police. So for me it has always been about trying to find solutions where we can. Even the unthinkable, trying at times to test some of those boundaries. It’s important because otherwise, when we get into the recovery phase [of the pandemic], there will be a whole myriad of issues we have to deal with. Even when lockdown measures are over, when you get a notice to appear for empanelling for a jury, to potentially be on a jury, how many are likely to turn up to a gathering of 50-70 people, with everything else that’s going on? Even psychologically, people may be less likely to show.”
So what’s next? Yousaf outlines three possible positions. “We find a solution which as many people as possible are comfortable with, which could be a combination of matters, remotely empanelling a jury, looking at large venues for social distancing etc, to come to a solution that we can largely if not all agree on, so there is some degree of consensus. That’s one option.
“The second option would be to bring back the provision, and we said we reserved the right to do so, but I honestly think that will be very unlikely, because I don’t think, from the conversations I’ve had thus far with the legal profession and others, that there is likely to be any change in their position, and this is not something that I am intending to force onto the legal profession even if I have the parliamentary arithmetic on my side.
“Then the third option is that we don’t agree to a solution and we don’t agree the provision should be brought back, and therefore all energy will have to be focused on how we resolve the backlog when we get into the recovery phase. I suppose if we do that option, which is a real possibility, we will have to go in eyes wide open. That includes the legal profession as well as my colleagues in the opposition - that this means long waits for the accused plus victims in terms of trials. It’s not a simple solution. Folk will say ‘bring judges out of retirement’ and we could bring some, but we can’t force judges out of retirement, that would be another controversial one. Some I am certain would come out of retirement to help, but even with court space – even bringing old courts back into use – you could make a dent in that backlog but realistically we’d have to accept there would be quite an impact on the justice system as a whole.”
Clearly these are not normal circumstances, and Yousaf is also faced with some very difficult decisions on the prospect of choosing between early release of prisoners and the prospect of the virus spreading rapidly through the prison population.
He says: “I am hugely concerned about the fact that, before the pandemic, we had an overcrowded prison estate and the potential for that virus to spread really rapidly. Bear in mind we also have young people in our custody, women in our custody, as well as the adult male population. What’s been reassuring is that where we were overcrowded before the pandemic, we are now below operating capacity. So as of today we are sitting at around 7,350 in our prison population. It’s reduced by over 600 from before the pandemic, which is largely down to the reduction in court business.”
Yousaf outlines a “three-pronged strategy”, based on the reduction in court business, the use of reformed home detention curfews and the new powers handed to ministers to release prisoners. And although he maintains he would only release prisoners as a last resort, work is underway to identify those who would be suitable.
“We would be looking at people who’ve had short sentences, 12 months or less initially, but that could extend to 18 months depending on the cohort and the numbers, but it would be around that sort of mark, 12-18 months, in the last three months of their sentence. We would obviously exclude certain categories – sex offenders, because if you release them there is a whole multi-agency public protection arrangement that have to be put in place and we don’t have the resources or the man power to do that. Again, we haven’t made a final decision, but I am minded to exclude anyone who has a domestic offence conviction as the index offence, because we know domestic abuse is likely to only increase with the lockdown, so we don’t want to be sending people back to their houses and making family members vulnerable.”
Yet with the number of prisoners self-isolating apparently falling, there is some evidence the new measures are working.
“That doesn’t mean there aren’t going to be, not just cases of COVID-19 in our prisons, but unfortunately there will be people who lose their lives to it, just as there will be in the general population. Any expectation that we can stop people dying in our custody, I am afraid, is just not an expectation we can meet, particularly because some of our prison population will have underlying conditions, some will be elderly, some will have other vulnerabilities. There is no way, I am afraid, of preventing deaths happening. What I will do is my best to minimise the impact of COVID-19 in prisons.”
Again and again, Yousaf and the rest of government seem to be presented with impossible decisions, as states all over the world ban their citizens from travel and restrict some of their most fundamental civil liberties. It’s hard to escape the sense that we are living through a critical moment in modern history, but what could come next? How could the pandemic change the way we think and feel?
Clearly, one of the most obvious changes has been in the way different workers and groups in society are valued. Whether it’s nurses, teachers or supermarket workers, it’s hard to escape the feeling that it is rarely the best paid or the most lauded workers who are putting themselves at risk, while a disproportionately high number of health workers come from BAME backgrounds. Could COVID-19 change how we value different skills and different groups?
“I would certainly hope so. I have a cousin in the police and from my job I see their struggles day-in, day-out. In this pandemic we are all conscious of any surfaces we touch, any shopping we bring back into the house. Even on walks people are body swerving each other, forget two metres, people are trying to get five or six metres away from each other, just to be on the safe side. But the police don’t have that choice, they have no alternative other than to be in contact, so they are very much putting their lives on the line here. The NHS are doing a heroic job, but if you want to protect the NHS you need to make sure social distancing is complied with, and the vast majority are doing that, but it is the police on the frontline making sure that is enforced. So I hope so, but it wasn’t that long ago the UK Government was talking about low skilled workers, and of course many of those that would fall into that bracket are the most essential. I never had any truck with the definition but I hope it will give people food for thought on who we think is essential.
“I hope it makes people kinder, I genuinely do, but I don’t know if that’s the case, because in my experience people have extraordinarily short memories. I also hope we begin to appreciate some of the things we took for granted. I hope I come out of this with a greater appreciation for things like seeing extended family, because it has been difficult.”