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As Russell Findlay said, my amendment 39 is similar to amendment 95, in his name. Amendment 39 was informed, again, by conversations with Victim Support Scotland and other victims organisations. They confirm what I think that we all already know, which is that victims are not routinely consulted or involved in initiatives that are intended to address offending.

Proposed new section 34A(2) of the Community Justice (Scotland) Act 2016 sets out a list of “persons” who must

“comply with a request by the Scottish Ministers to engage in the development, management and delivery of a release plan”

for a prisoner. Amendment 39 stipulates that the persons and organisations that are listed must have regard to victims and victims organisations and must explicitly ensure that they are involved and consulted at all stages of the development, management and delivery of a release plan.

My amendment 40 would require the Scottish Government to report within one year on how the release planning process is working and to carry out a consultation on the published guidance. I note that Jamie Greene’s alternative position is to allow a longer period of time for the Government to report. I am flexible with regard to the period of time that it is believed will be required.

Section 9 imposes a duty on the persons listed to engage in the development, management and delivery of a release plan if they are requested to do so by the minister. Amendment 40 is an attempt to ensure that the process that is set out is as effective and manageable as possible for the organisations involved, and that it leads to the right outcomes.

My amendment 41 follows on from the debate on women in custody that we had at last week’s meeting. It would require ministers to carry out a review of release planning for women in custody. A key motivation for the amendment is our knowledge of the experiences and profile of women in custody, as well as the lack of data in this area.

As we know, Scotland has one of the largest female prison populations in Europe, almost 40 per cent of whom have not been convicted. Many of those women are very vulnerable, a high proportion are mothers and carers, and many have suffered brain injuries as a result of repeated domestic abuse. Refocusing the use of remand in relation to women is a wider debate, but amendment 41 seeks to ensure that some of those special circumstances, and the profile of women offenders, are factored in at the release planning stage.

What is the cabinet secretary’s view on the current access to education, training and cultural experiences for those on remand compared with that for those who have been convicted? What is her understanding of how the Scottish prison system operates?

Amendment 6 follows on neatly from our discussion last week about amendment 67, which Collette Stevenson lodged. [Interruption.] I apologise—I need to clear my throat.

Amendment 6 would add on a provision to allow a court to take into account compliance with bail conditions, including electronic monitoring and curfew arrangements. It would enable the court to take into account compliance with such conditions when sentencing, so that the sentence was either reduced or increased. I believe that courts already do that; the amendment would simplify codify a practice that already takes place, when the court takes into account all the circumstances in considering the appropriate sentence in the situation.

I was sympathetic to Collette Stevenson’s amendment 67, to remove section 5, which concerns consideration of the time that has been spent under electronic monitoring. I am very aware that electronic monitoring is imposed only when an accused poses a real risk. Electronic monitoring is used to avoid remand; it has never been considered to be a punishment or a sentence.

Amendment 6 takes a better approach than amendment 67 proposed, because it would give the court more discretion. In reality, the court already takes account of such issues—for example, if an accused person had not complied with curfew arrangements, had attempted to approach the complainer or had not complied with electronic monitoring requirements, the court would take that into account when considering what the appropriate sentence for the individual was. When an individual has complied with requirements from the court, the court often bears that in mind when considering sentencing. Amendment 6 would give the court more discretion to take into account all the circumstances.

I move amendment 6.

Amendment 42 is a probing amendment. The proposed new section 34B sets out that

“Scottish Ministers must ... publish standards applicable to throughcare ... in Scotland”

and that

“In preparing, reviewing, and revising the standards”,

various bodies should be consulted. My amendment stipulates that the consultation should be “public”.

Establishing new statutory minimum standards for throughcare support is a key change that affects individuals’ successful integration into the community and offers assistance around accommodation, healthcare, education, employability and other services. Input from wider communities can only be useful, therefore, and I look forward to hearing from the cabinet secretary what the Government’s thinking is on my proposal.

Amendment 43 is another amendment that has been informed by discussions with Victim Support Scotland. The argument is that the support that is provided must be safely and appropriately designed and must address the needs of victims, but section 10 makes no specific reference to engagement with victims of crime or their support organisations. Amendment 43 is similar to many of the amendments that we have discussed in previous groups in that it would ensure that the input of victims organisations is explicitly required.

Amendment 3 relates to resource issues, which we have debated on a number of occasions. In debating previous amendments on reporting, it has been recognised that, without greater funding and resource, there is a fear that many of the organisations that will have obligations put on them by the bill will simply not be able to deliver those obligations adequately because of a lack of resource. Amendment 3 is designed to highlight the fact that organisations will be overburdened with responsibilities unless adequate funding and resource are provided. Amendment 3 would support greater parliamentary scrutiny of the issue by ensuring that the bodies that are required to comply with the throughcare support standards have the capacity to do so. It would enable the Parliament to actively scrutinise whether resources are provided to ensure that the legislation is meaningful.

Amendment 44 relates to the provision of access to education, training and work opportunities to prisoners on remand. There is currently no statutory basis for enabling that to happen, although I understand that some prison establishments attempt to provide such opportunities to remand prisoners even though they are not legally required to do so.

As we have discussed previously on many occasions, we have a high number of untried prisoners in the prison system, who are often held in prison for extended periods. The period for which individuals are held on remand has grown considerably for a number of reasons, including the extension of time limits and legislation that the Parliament has passed, and the situation has been exacerbated by the pandemic.

A range of types of accused people are held on remand. Although many will be on remand for non-violent offences, a significant number will face charges of a significant nature. Amendment 44 would enable untried prisoners to have greater access to services that are available to convicted prisoners. It is tied to section 10, on throughcare support, and it would ensure that such obligations are guaranteed and could be met immediately, as soon as a period in custody starts.

Operational considerations and other considerations would need to be taken into account. Certain types of training and opportunities might be more appropriate for someone who might be in prison for less than a week, whereas, if it is known that an individual will be on remand for an extended period of time, a range of other opportunities and training might be more appropriate. Amendment 44 seeks to open up that debate. If there are specific problems with the wording, I would be happy to discuss that with the Scottish Government.

The principle is that some of the services and access to education, training and work opportunities that are available to convicted prisoners should be available to remand prisoners and that that would significantly improve the quality of the time that those individuals spend in custody. We should remember that those people have not been convicted of anything. Such a measure might also be of significant benefit to the SPS. As I said, I understand that, on occasion, such opportunities are offered to prisoners on remand, although I am not convinced that there is a statutory basis for that.

I move amendment 42.

I am grateful for what Jamie Greene has said and I will reflect on it for the next stage. It is not my intention to move amendment 1, but I suspect that I will want to come back to the issue at a later stage.

I do not intend to press amendment 55 to a vote or to move any of the other amendments in my name in this group. The amendments have been lodged in an attempt to clarify the Scottish Government’s thinking, given that, during the discussions on the bill, it has been unclear which groups of accused who are currently remanded would get bail after the bill’s passage. The cabinet secretary has been clear that her intention is to reduce the remand population.

Throughout the bill process, we have been told that it is an attempt to refocus bail law. What has been less clear is what the law will be refocused to. Some of what the cabinet secretary has said has helped to clarify what the Government is trying to achieve. However, it is still not clear which currently remanded groups would get bail if the bill passes. From what has been said, they seem likely to fall into the category of risk of prejudice to the interests of justice rather than public safety. The amendments have attempted to explore that.

I am not satisfied that we are absolutely clear that how the bill has been drafted means that the law as changed would satisfy the range of responses that the courts need to ensure that we can get convictions safely. In cases where somebody is charged with a serious offence but the nature of the offence means that they are not a risk to anybody else—for example, the only risk would be that they would never appear in court again—the bill as drafted would put us in a better position than we are in now.

I am interested in hearing more from the cabinet secretary over the coming period about the fear of flight area, and I would like an indication of the kinds of accused who are currently remanded and to whom bail will be granted under the bill, so that we can scrutinise whether that is genuinely in the interests of justice.

I am grateful for what the cabinet secretary has said. She has made it very clear that her intention is to reduce the remand population. The question that the committee has is: what categories of those who are currently remanded would it be safe to allow the opportunity of bail? I look forward to further consideration of that issue. I do not intend to press any of my amendments to the vote today.

Amendment 55, by agreement, withdrawn.

Amendment 56 moved—[Jamie Greene.]

I am grateful to the cabinet secretary for what she has said. I think that her intention is clear. I do not plan to press amendment 28 to a vote or to move any of my other amendments in the group. However, I am grateful to the cabinet secretary for saying that she will look at whether there is a need to reframe the wording of the bill, given that we seem to have different legal views on how the section would be interpreted. I would be concerned about the possibility of appeals if there are different legal interpretations of the wording. I am very much raising technical issues and not addressing the principle, which the cabinet secretary has made clear.

I lodged amendment 1 because I am concerned about the resourcing implications. Although we are politically very supportive of more social work involvement and more information being available, we are also very aware of the cuts to justice social work over recent decades and that, in reality, it will not be possible for justice social work to get involved in every case. It is not possible to lodge an amendment that would enable the bill to create the funding to ensure that there is adequate resourcing. The amendment was framed as it was to bring a focus to the resource implications.

I will not be putting amendment 37 to the vote. I look forward to hearing what the cabinet secretary has to say about amendment 8, which also seeks to introduce a reporting requirement.

Amendment 37 relates to women prisoners. It arises out of the difficulties that exist in obtaining information about the nature of the women who are held in custody in Scotland and, in particular, the difficulty of obtaining data in relation to women who are held on remand.

Amendment 37 also arises out of the concerns that exist—I know that the cabinet secretary shares them—about the overall number of women in custody and about the proportion of women in custody who are on remand. According to the most recent figure that the committee received, 36 per cent of the women who are being held in custody in Scotland are currently on remand. We know that Scotland has the largest number of people in prison, as a proportion of the population, in western Europe. We also have by far the highest remand figures.

In addition, women make up a higher proportion of our prisoner population and Scotland has the highest number of women in prison. A higher proportion of the prisoners who are in custody in Scotland are women than is the case in other countries; I think that women make up approximately 4 per cent of the prison population.

We know from research and evidence that the courts tend to give more stringent sentences to women than they give to men for the same offences. That is not a new feature. It is not the responsibility of any particular party or of the current Government. It has been a feature of our custodial system for many generations. Across the political parties that are represented in the Parliament, there is concern about why we have such a high level of women in custody and about whether we are dealing with women offenders in the best possible ways and have the necessary range of resources and mechanisms in place to deal with those challenges in the most effective way.

As I said, I will not push amendment 37 to a vote. I am interested in hearing from the cabinet secretary about the type of information that could readily be provided to the Parliament or about systems that could be developed to provide information.

As drafted, amendment 37 would require ministers to publish a report on women who have been refused bail, which must include information on

“the nature of the offences women refused bail have been charged with”.

As I said, that information is not currently available to the committee, although equivalent information is available in relation to male offenders.

My amendment also asks that information be provided on women who have been refused bail in relation to whether they have a history of offending; whether they are classified as primary carers; their age; and any specific common health issues that they have, including physical health issues, mental health issues and any issues in relation to drug addiction. The amendment does not mention alcohol addiction, but that is another area of concern.

Amendment 37 also asks for information about the proportion of women who are refused bail who are subsequently sentenced to imprisonment. Obviously, there is concern about women who are held on remand for a lengthy period who are found not guilty when they come to trial, or who receive a sentence that is significantly less than the period that they have already been in custody.

As I said, the list that amendment 37 provides is not definitive—it is just a range of suggestions. It might be the case that certain types of data are more readily able to be calculated by the prison system and the rest of the justice system than others.

My intention in lodging the amendment is to create a pathway so that more information is available about the nature of the women who are being held in custody, so that policy makers and legislators are able to grapple with the challenges that we face and enable us to address the level of custody that is used for women, which I believe is not appropriate for the society that we live in.

I will listen very carefully to what the cabinet secretary says in relation to her amendment.

I move amendment 37.

I am grateful for the opportunity to make a short contribution.

I will not be pressing Collette Stevenson’s amendment to the vote, but if it is pressed to the vote, I will support it. I think that the proposal from the Scottish Government is too restrictive and too prohibitive, and it goes way beyond the general concept that there might be circumstances in which the court has the discretion to take into account periods spent on electronic monitoring. I will touch on that point in relation to the amendment that we will debate next week, which I lodged as an alternative. That would involve the deletion of section 5 and the insertion of an alternative, whereby periods on electronic bail could be taken into account by the court.

The fundamental point is that electronic monitoring is not a sentence; it is a bail restriction in circumstances in which there is a risk that the accused poses a public safety threat or a threat to the victim. In the same way that a curfew or a condition that the accused must not approach the complainer is used, electronic monitoring is used only in situations where there are genuine risks. We must be really clear about the fact that that is the way in which it is used.

However, if that restriction is so great, there is an argument that compliance with electronic monitoring, or failure to comply, might be something that the court would take into account in sentencing. I believe that the courts already take into account such considerations. Whether someone has adhered to a curfew, electronic monitoring or other bail conditions can be facts that the court has the discretion to take into account. The problem with the Government’s wording is the highly restrictive way in which the provision has been drafted. We will undoubtedly continue that discussion next week, but I support Collette Stevenson’s amendment 67.

It might be helpful to say at the outset that I do not plan to push any of my amendments in this group to a vote. I have lodged them in a genuine attempt to get a better understanding of the Government’s thinking on how the provisions as drafted would operate. It is worth saying that Pauline McNeill and I have had a number of meetings about the provisions with lawyers and practitioners—mainly criminal defence agents—so some of what I will say will be based on those discussions.

Amendment 28 relates to the requirement that the sheriff or judge must give an officer of the court the opportunity to provide information. When the committee discussed the issue initially, our understanding was that that would be a mandatory requirement. However, in the course of our deliberations, we were given advice that there would simply be an opportunity for a social worker to give information to the court and that there would not be a mandatory requirement.

The committee’s major concern in that regard related to the resource implications. The backdrop is that there are probably far fewer justice social workers available to the courts now than there were in previous decades. There are genuine issues regarding the ability of a sheriff or High Court judge to have access to a social worker within the timeframes. Custody courts usually involve the sheriff court, and many dozens of cases go through a busy custody court on, for example, a Monday morning.

At our meetings, solicitors, acting sheriffs and defence agents said that their interpretation of the provision as drafted was that it would be compulsory that there be social work involvement at a very early stage. There are obviously practical implications to that.

I therefore thought that it would be helpful to bring the matter to the committee’s attention in the form of an amendment, in order to tease out the issues and focus on the specific wording. It is important to put on the record that Scottish Labour wants a great deal of social work involvement in such cases. We take the view that the more information available to the court at the earliest stage, the better, because that makes it more likely that the court will be able to make the correct decision in the interests of justice.

Amendment 28 would remove the stipulation that the judge must get information from the local authority before making a determination. That is the more extreme of the amendments that I have lodged on the issue, but it reflects the consensus in the meetings that we had with defence agents. Their view was that, in the early stages of cases, where somebody might be arrested one night and appear in court the next day, it is onerous and unworkable to expect that level of information, or any information, to be available. Therefore, amendment 28 would completely remove the provision that the judge must get that information.

Amendment 49 is drafted in a slightly different way and would simply change the word “must” to “may”. That would mean that there would be no mandatory requirement, but it would give the court the ability to get the information and would, I suppose, make clear Parliament’s view that we would like that to happen and that we see it as advantageous. Amendment 49 would be a weakened version of the provision in that the judge could formally give local authorities the chance to provide information—the court would have that information where it required it and asked for it.

As I say, lawyers have raised serious concerns about the practicality of the provision, given the level of social work support that is currently available to courts. Given the budgetary provision that the Scottish Government has presented to us, it seems unlikely that we will be in a substantially different position when the bill comes into force.

Amendment 1 relates to a different issue, but I presume that it would be helpful for me to speak to it at this point in the discussion. It would introduce a requirement on the Scottish Government to report to the Scottish Parliament on the operation of the provisions with regard to criminal justice social work. Clearly, that is related to the resource implications that I have referred to and whether, in reality, it will be possible for social work reports to be available at such an early stage in cases.

I hope that that is helpful and enables us to scrutinise the provisions at this stage.

I move amendment 28.