Seòmar agus comataidhean

I will seek to withdraw amendment 4. However, I intend to come back to the issue at stage 3 and will look carefully at what the cabinet secretary said about the drafting of the amendment. Indeed, I would be happy to work with others to ensure that the wording is as acceptable as possible to as many members as possible who are willing to support it.

On amendment 5, I look forward to seeing what the cabinet secretary comes back with and, depending on that, I might bring the matter back at stage 3.

Amendment 4, by agreement, withdrawn.

Before section 12

Amendment 5 not moved.

Sections 12 to 15 agreed to.

Long title agreed to.

I lodged amendment 38 after working with Victim Support Scotland and other victims organisations, which are concerned about the implications of section 8. I have looked in detail at that section’s wording, and it is fair to say that the concerns are about its being widely drafted; about the fact that some detail will be in regulations, so we do not know what further detail the Government will provide; and about the lack of certainty over the definition of an emergency.

I am sympathetic to the approach that Jamie Greene has outlined in amendment 93. The power in section 8 will be permanent, so, over time, it could be used in a number of situations, including scenarios that we do not currently envisage. The provision therefore needs to be tightly defined. I am sympathetic to what the cabinet secretary has said about the extreme circumstances in which it might be necessary to take such action, but, if Parliament is to pass the bill, those circumstances must be tightly defined.

It is not my intention to push any of my amendments to a vote at this stage. However, they raise important issues in relation to the involvement of victims, which we have already discussed, and of victims organisations and the resource challenges that the justice system faces, which are unlikely to be impacted by anything in the legislation that is being proposed by the Scottish Government.

On amendment 44, as I understand it, the evidence that the committee has received indicates that the type of activities that are available to people who are on remand is greatly restricted compared with those available to convicted prisoners. It might be that the Scottish Prison Service’s practice is changing over time. It would be useful to get more information about that before the next stage of the bill.

As I said, I do not plan to press any of my amendments at this stage.

Amendment 42, by agreement, withdrawn.

Amendments 14 to 18 moved—[Angela Constance]—and agreed to.

Amendment 43 not moved.

Amendments 19 and 20 moved—[Angela Constance]—and agreed to.

Amendments 3 and 44 not moved.

Section 10, as amended, agreed to.

Amendment 45 is a technical amendment that was agreed with Victim Support Scotland. Section 11 suggests that a victim support organisation that is acting as a supporter can, of its own volition and without the victim’s specific consent, ask for information under that section. Amendment 45 would require specific consent.

Victims organisations do not believe that it is appropriate that the bill should proceed as drafted, as they believe that it would undermine victims’ agency, override victims’ autonomy and consent and undermine their trust in professionals if they were aware that information could be provided without specific consent, and that it would make victims less willing to engage in the future.

Amendment 45 would ensure that a victim support organisation can obtain the relevant information only if given express permission to do so by the victim or, in certain circumstances, on the victim’s behalf or on behalf of the organisation.

Amendment 46, which is a consequential amendment, was also agreed with Victim Support Scotland. It refers to the section allowing victim support organisations to obtain information around the victim’s right to make representations when a prisoner is being considered for release on licence. The view is that the wording of the section as drafted is problematic and raises similar issues to those raised in relation to amendment 45. The suggestion is that one way of dealing with that would be to remove that wording from the bill.

Amendment 48, again, was discussed and agreed with Victim Support Scotland. It stipulates that there must be victims’ consent to each stage—for example, victims’ consent in relation to information-sharing provisions. It replicates the Victims and Witnesses (Scotland) Act 2014 regarding the information-sharing provisions. The approach that is outlined is the approach that is being asked for by organisations that work with and represent victims. For that reason, I lodged amendment 48 to hear the cabinet secretary’s thinking on the issue and the Scottish Government’s response to the representations that have been made to members of the committee and, I suspect, to the Scottish Government.

I move amendment 45.

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.]