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Amendment 2 would revert to the original wording on absconding that is set out in the Criminal Procedure (Scotland) Act 1995. Amendment 33, which Jamie Greene refers to, would, as he says, set out that the court, when considering whether to refuse bail, may take into account any on-going or previous proceedings, and not just the accused’s failure to appear. Indeed, the current legal position is that the court may take those matters into account, and it regularly does so. The court takes a view as to whether it believes that the accused will come back if they are given bail, and will appear for the next court diet.

My understanding of the bill as introduced is that, if an individual had failed to appear in previous diets of the case that is currently before the court, that matter could be taken into account, but that, on a strict interpretation, if the accused had failed to appear in other outstanding cases that had not yet reached their conclusion, that could not be taken into account. It will often be clear from someone’s schedule of previous convictions that there has been a failure to appear on previous occasions relating to other matters, perhaps where the accused has already been convicted.

The effect of amendment 33 would be to make it clear, for the avoidance of doubt, that the court could take into account not just what had happened in the particular case and in relation to that particular complaint but other information, which is how Scots law has worked until now.

The amendment is an attempt to get a better understanding from the Scottish Government of how the bill will change the law and whether it will make a significant difference. I put the issue to the previous cabinet secretary when he appeared before the committee, and he said that, if people do not appear, they could, of course, be remanded. However, we cannot just rely on what the previous cabinet secretary said to us; it is about the strict interpretation of the legislation, which is what the courts will have to grapple with. We have to ensure that the courts are able to take into account the circumstances that are presented to them.

Amendment 34 is consequential to amendment 33.

Amendments 35 and 36 relate to issues that have been raised by Victim Support Scotland. They contain alternative approaches and raise issues that we will probably want to come back to at stage 3.

Amendment 35 would ensure that the safety of the complainer has to be taken into account. It would ensure that the court must, when granting bail, state the reasons why it considers that the granting of bail does not pose a risk to public safety. The current wording of the bill would require an explanation when an individual is remanded. The presumption is that people will get bail, so there does not need to be an explanation as to why they are granted it, but, when a person is remanded, the court will be required to set out the reasons for that.

As I said, amendment 35 was lodged as a result of discussions with Victim Support Scotland, which is concerned that victims often do not understand why bail has been granted. The amendment would enable equality in that reasons would have to be given not just when somebody is remanded but when somebody receives bail.

Amendment 36, which is an alternative, would delete section 2 completely so that there would no longer be a requirement for reasons to be given. As I said, I have also worked with Victim Support Scotland on that proposal.

I move amendment 55.

Yes.

Amendment 28, by agreement, withdrawn.

My amendments in the group, which is on entitlement to bail, relate to three areas: the public safety test; the fear of flight; and, in amendments 35 and 36, alternative approaches to address issues that Victim Support Scotland raised on these provisions.

Amendment 55, which is a probing amendment, seeks to remove the new public safety test for bail so that the law reverts to the current public interest test. As I have indicated, Pauline McNeill and I have been involved in a number of meetings with defence agents and other practitioners—including, on occasion, sheriffs—in relation to the drafting of the bill, and the view of many whom we have met is that what I have proposed is the preferred approach due to uncertainty around how the new provisions will be interpreted by the court.

On a number of occasions, fear has been expressed that the lack of certainty in relation to the definition of the public safety test is likely to lead to appeals. Even if, at the end of the day, the outcomes are the same as they are under current bail law, such uncertainty is not in the interests of justice or of victims, and, indeed, the arguments that will have to be presented in the courts over interpretation of the legislation will come at a cost to the public purse.

My lead amendment would remove the public safety test. I am looking for the cabinet secretary to outline why the Government is proposing the change so that we can get an understanding of how it believes that it will impact on bail decisions in the courts, particularly given that Lord Carloway’s submission to the Scottish Government was that, although the measure would add bureaucracy and place more onerous requirements on the courts, outcomes would not be changed. I am looking for the cabinet secretary to give an explanation of the kinds of cases in which she expects that, if the bill were to be enforced, bail would be allowed where it would not be allowed at the moment and, similarly, situations in which individuals would be remanded under the measure when they are currently not.

Amendment 31 would enable the court to have discretion to take into account electronic monitoring or other specific conditions or requirements to which the accused was subject. That issue was discussed in the committee. The approach that the Scottish Government proposes is that, where an individual has been subjected to electronic monitoring, it will be compulsory for the court to take that into account, and every two days of electronic monitoring will be counted as one day in custody.

The approach that I outline in amendment 31 would enable the court to have discretion to take into account any period of electronic monitoring or, indeed, any other specific conditions and whether the accused has complied with the conditions to which they have been subject. That would mean that the court would have the discretion on occasion to reduce a sentence—for example, if there was evidence to suggest that the person had complied with the conditions of curfew or electronic monitoring—but it would not be obliged to do that. Similarly, it would enable the court to increase the sentence if an individual had not co-operated with the special conditions that were placed on them. It could be that they had not co-operated with electronic monitoring, a curfew or another condition that the court had presented—for example, if they had made attempts to contact or approach the complainer. The reason why I have lodged the amendment is to enable the court to have a far broader range of responses and to take account of specific facts that are presented.

Amendment 30, which is also in the group, is a probing amendment that came about as a result of discussions about the public safety test. As the committee has discussed and as lawyers have stated in their various representations, there is a view that it would be helpful to have a definition of the test. One of my concerns is that I have attempted to ask others to draft a public safety test or to give an indication of the factors that they believe should be on the face of the bill but they have been reluctant to do so. Amendment 30 therefore provides an indicative list of the types of factors that might be taken into account. As I said, it is a probing amendment and I do not plan to push it to a vote today, but I am looking for the Government to give an indication as to whether those are the kinds of factors that it expects the courts will take into account when considering what public safety will involve.

Amendment 63 would require consultation with victims groups about the drafting of the public safety test. It would require the Scottish Government to come back in writing with detailed proposals for how the courts will interpret the public safety test and to consult victims organisations and others on how the courts will be expected to deal with such matters.

I lodged amendment 32 to get a better understanding of the Government’s thinking. The current bail provisions are clear that the court is able to refuse bail if it believes that that will be in the interests of justice and that granting bail would be prejudicial to the interests of justice. One reason why granting someone bail could be prejudicial to the court process is that they would be given the opportunity to intimidate witnesses or complainers. If the bill were to be passed, it is unclear whether the Government would expect the courts to have a lower threshold when considering such issues. Amendment 32 would reintroduce the current law in relation to the intimidation of witnesses and complainers. It would make it clear in black-letter law that the court is entitled to remand someone if there is a legitimate fear that there could be intimidation.

One of my other amendments relates to the fear of flight. We have focused on that issue, but, when the committee discussed the bill, we did not consider to any great extent that the bill’s provisions change the current bail law in that the public safety test will very much focus on the risks to the public. Issues around the fear of flight and absconding relate primarily to the ability for the interests of justice to be served, with the court process being able to proceed to its conclusion because the accused is available to attend court.

It would be useful for the Government to indicate how many individuals are currently remanded because of issues relating to the fear of flight and individuals absconding. It would be useful to understand whether the Government believes that the bill as drafted will result in fewer individuals who fall into that category being remanded. What would the implications be for the justice system and the ability to obtain convictions if that were to happen?

Amendment 33 contains a similar provision. My understanding and the understanding of those from whom I have taken advice is that, under the bill’s drafting, the court would be obliged to consider the failure to appear in a particular case when considering whether to grant bail. Amendment 33 would enable the court to take into account a wider course of action. If an individual had a history of failing to appear or of absconding—there might be evidence from previous convictions, or other evidence could be provided to the court—such information could be taken into account.

It might well be that the Government’s amendment 7 deals with the issues that I have attempted to address in amendments 35 and 36. As I have said, amendment 35 was drafted after work with Victim Support Scotland, and it is also supported by Scottish Women’s Aid, ASSIST, Rape Crisis Scotland and other organisations. It would be helpful to put on the record the reasoning behind that amendment and, indeed, amendment 36, which was drafted following discussions with defence agents. I would want to go back and have discussions with those organisations before the next stage of proceedings.

On amendment 35, as we know, the bill places a duty on the court, when bail is refused, to state the grounds on which it has determined that it has good reasons for doing so. Those reasons are to be entered into the record of proceedings. In that respect, I heard what the cabinet secretary said in relation to amendment 7.

However, the concern raised by Victim Support Scotland relates to issues of equality and rights to information for victims. Although it accepts that the bill as drafted will contribute to transparency of judicial decision making around bail and will, for that reason, be of benefit to victims of crime, it believes that the provisions need to go further by ensuring that written reasons for the granting of bail are provided, too. That will enable victims to have an understanding of the court’s thinking.

Victim Support Scotland has said that, in consultation sessions that it held with Scottish Women’s Aid, women and workers for local women’s aid groups highlighted that the lack of information available to women explaining the court’s reasoning was a common and repeated issue and a source of frustration and concern to them. The organisation has therefore argued that, to ensure consistency and transparency of decision making and proceedings for participants and to assist in the enforcement of bail conditions and safety planning for victims, the reasons for refusal must also be communicated in writing to the victim, particularly women experiencing domestic abuse. I think that we will look at electronic monitoring later, and Victim Support Scotland feels that similar provisions are required in that respect, too. Moreover, the organisation has pointed out the precedent in the 1995 act for the court to give reasons for making decisions on specific aspects of bail that would have an impact on a complainer, referring to section 24(2B) in particular.

I very much welcome the cabinet secretary’s amendment, but I want to reflect further on the points that are being made by Victim Support Scotland and other organisations with regard to equality and the availability of similar information, whether bail is granted or refused.

The alternative position that I have put forward in amendment 36 came out of discussions with solicitor practitioners and, as I said, some practising sheriffs. They felt that the onerous nature of the provision and the added bureaucracy would involve more time but would lead to the same outcomes. Amendment 36 was lodged to remove the provision completely for the reasons that the legal profession has set out on a number of occasions and that are referred to in Lord Carloway’s submission to the Scottish Government.

I will reflect on what the cabinet secretary said about the provision simply being a formal requirement. However, I want to look at issues around equality and whether the proposal meets the needs of victims. Therefore, I do not intend to push either of my amendments to a vote.

Given what has been said, I will not press amendment 37, which I now withdraw. I also warmly welcome amendment 8, as lodged by the Scottish Government.

Amendment 37, by agreement, withdrawn.

Section 5—Time spent on electronically monitored bail

Theme 3 is about new policies. Quite a number of new policies were suggested under themes 1 and 2. I was going to read them out, but there are far too many of them, so I will not do that. As the deputy convener said, many of the policy levers lie at Westminster but, at the same time, the Scottish Parliament and the Scottish Government have substantial powers not only over areas that are their responsibility but over the ability to mitigate.

To develop some of the themes that have already been raised, what new policies do we need to prioritise to tackle the specific issues that have been identified in relation to lone parents? Are there any that would probably not cost significant amounts of money and might be easier to prioritise in the current situation? What permanent changes do we need to make, particularly given the fact that the Scottish Parliament has extensive responsibility for social security? We have to develop our social security system in Scotland differently. How would you develop some of the themes that have been raised?

I will go to Kirsty McKechnie first, if she is comfortable with that.

That could be developed in many ways, although it would take some time. That is very interesting. I think that Martin Canavan wants to come in.

I, too, congratulate the minister on her appointment.

I want to ask about the timetable. I will support the instruments today. Labour supported the 2022 act and the creation of the various new criminal offences, despite the fact that we had concerns about the operation of the licensing scheme. You mentioned that, before June, we will look at a piece of delegated legislation in relation to control zones. Is it possible to share with the committee, prior to June, any information on the definition of control zones, which was a live issue as the Fireworks and Pyrotechnic Articles (Scotland) Bill went through Parliament? You will know that, when the committee gets statutory instruments to look at, the turnaround time can be quite tight, so, the earlier that we get that information, the more we will be able to actively consider and scrutinise it. It would be helpful to have early sight of that.

It would also be helpful to get information on the licensing scheme earlier, although I appreciate that work on that is at a far earlier stage. Genuine concerns were raised about that scheme. Of course, that will depend partly on the practicalities and the detail of how the Government takes forward the legislation. It would be useful for committee members, who have looked at the legislation in detail, to have an opportunity to consider that.

I have no relevant interests to declare.

My first question arises from the evidence that you have given so far. I want to be absolutely clear about why we need the bill and why there are currently six young people in Polmont. Is there a legal barrier at present that prevents those young people from being transferred into secure care?