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I was interested in the cabinet secretary’s points about the justifications for the time limits that are being sought. I am sympathetic to the problems that definitely exist with the court estate, and I might write to the cabinet secretary to seek more information on where the pressures are. I appreciate the difficulty in addressing some of those issues in a speedy way. It has to be said that the time limits that the Scottish Government seeks are extensive and we would want further justification as to why they are required, but I will not press or move any of my amendments on the time limits today.

I am grateful to the cabinet secretary for his comments in relation to amendment 1021. As we might be able to come back to that issue later, I will not move that amendment at this point.

Amendment 1011, by agreement, withdrawn.

Amendments 1012 and 1013 not moved.

Amendment 1001 moved—[Brian Whittle].

Will the member take an intervention?

In speaking to my amendments, I referred to Crown and defence capacity in relation to time limits, but are you saying that court capacity is the main driver for needing to extend the time limits?

My understanding is that, if fiscal fines did not exist, the prosecution would have to decide whether to prosecute a case and whether they felt that they could prove the case in court and it was in the public interest to take that forward. Is that your understanding of the position?

Amendment 1034 is a relatively simple amendment that asks for the Scottish Government to provide Parliament with six-monthly reports from January 2023 on the operation of virtual courts, which would enable effective scrutiny. We have already heard from Pauline McNeill about virtual appearances for people in custody. On occasion, those arrangements could be described only as shambolic. The reports should be not so much about the principle of virtual attendance but about how the system is operating in reality, although issues of principle might also be involved.

Jamie Greene spoke about the disappointing responses that many in the profession gave on the operation of virtual courts and about the concerns that they have raised.

We know that there have been very few virtual courts up until now. The committee has not looked in a great amount of detail at the pilot in the north-east, which involved a relatively small number of cases, but it has heard some evidence about it. Some of the content of the report that we saw was quite surprising. One of the concerns was that such courts would operate against the defence and would result in more convictions but, according to that report, the opposite was the case. However, as I said, the pilot involved a very small number of cases. That highlights that virtual courts might not operate in the way that we think they will operate.

The decisions that we make are important, because we could be making massive changes to the legal system in Scotland.

That is correct. The cabinet secretary said that the Parliament would have the opportunity to scrutinise proposed legislation that would make virtual courts a permanent fixture of the legal system. If information was shared regularly with the Parliament and the committee, that process would be far more meaningful. As a member of the committee, I know that it took us some time to get information on how virtual courts operated during the pandemic. If a structure was in place that enabled more regular reporting and that required officials to provide that information, there could be more effective scrutiny, and the outcome would be that Parliament would be more likely to make better decisions. That is what this is all about.

In reality, very few cases have gone ahead on a fully virtual basis. Instead, elements of cases have been dealt with on a virtual basis—for example, juries have attended virtually from cinemas. In general, from what I can gather, that seems to have worked well, but there will no doubt be other views on that. It seems likely that some aspects of cases, particularly those relating to case management, lend themselves better to virtual appearances.

My apologies.

With the exception of amendment 1021, which is on reporting, all the amendments that I have lodged in the group are probing amendments that relate to the current extension of time limits, which the Scottish Government suggests should continue. The examples that I will give are illustrative. I will not speak to every amendment, because there are so many of them, but I will provide a flavour of them.

Allowing the bill to pass would have the effect of extending the 11-month pre-Covid time limit for the time from appearance and petition to pre-trial hearing to 17 months, as provided for in the emergency legislation. The lead amendment in the group suggests that, instead, that period should be increased to only 13 months. I will provide another illustrative example. The emergency legislation extended the time for which someone was allowed to remain on remand until the pre-trial hearing from 110 days to 290 days. Amendment 1016 proposes that that should be allowed to increase to only 200 days.

The periods that I have chosen are arbitrary and not evidence based because I have not seen any evidence to justify why, for example, 290 days are required to prepare between the time when someone is taken into custody and the pre-trial hearing. The purpose of amendments 1011 to 1020 is to try to tease out from the Scottish Government the reasoning and justification for why the amount of time that is specified in the bill is necessary.

It must always be said that, in Scots law, there is provision for time limits to be extended on cause shown. It is therefore always possible to go to court to make a case as to why the Crown does not have sufficient time and needs further time to prepare the case for trial. However, the effect of the legislation that has been in place during Covid is that the amount of time for which people are held in custody before they are taken to court and their case is heard has been extended significantly. Many organisations have raised human rights concerns and many consider the time extension to be draconian. The issue before us is whether the extensions are necessary and will continue to be so during the period for which the bill’s provisions will be in place if it is enacted.

The backdrop is that we still have the highest number of people in prison in Europe. I say “still” because it is an historical issue, and it is important for the Parliament to explore it. Why is it that, historically, Britain in general has had high numbers of people in prison, but Scotland in particular has always had higher numbers of people in prison than the rest of the United Kingdom and, indeed, the rest of Europe? We also have an historical problem of high remand rates, which increased staggeringly during the Covid pandemic. We were informed in evidence a number of weeks ago that the remand rates in Scottish prisons are currently at 30 per cent. We were previously told that the figure was 27 per cent. It would be interesting to know whether it has increased again.

The extension of the time limits will almost inevitably lead to an increase in prisoner numbers. We already have a huge problem with prison overcrowding, and it will simply not be possible to build more prisons and create more prison spaces under the timescales in the bill.

Some people are found not guilty at trial after lengthy periods in custody or receive lesser sentences than the period for which they were held on remand. The committee has spoken about that previously and mentioned it in previous reports. Also, given that there is always a tendency in almost any establishment for people to work to deadlines, the concern must be that, if the deadlines are longer, there will be less pressure to ensure that cases are prepared as speedily as possible.

Amendments 1011 to 1020 are probing amendments. They are not evidence based, in the sense that I have not taken evidence on or been able to justify the time limits that I propose. However, I submit to the committee and put it to the Government that the Government has also not presented evidence as to why the time limits in the bill are necessary. Indeed, many people in the legal profession insist that the amount of time that is provided for is not needed by the Crown or the defence. The impact of the time limits on the system has been very significant and it has in large part resulted in some of the problems that the committee has discussed on many occasions.

I might come back to the issue at a later stage but, at this stage, I ask the Scottish Government to justify why the specific lengths of time extension in the bill have been sought, are in place and should be continued.

Amendment 1021, which is on reporting, is similar to the amendment on reporting that I spoke to earlier, but it relates to the issue of remand. As I said, we already have the highest remand figures in the whole of Europe. I will not rehearse all the arguments about that, as members have already heard them.

Amendment 1021 seeks to require the Scottish ministers to lay before the Scottish Parliament

“as soon as practicable at the end of each reporting period”,

which is every six months, a report that sets out the number of prisoners who are being held on remand, the average length of time for which prisoners are being held on remand pre-trial and information on disposals—in other words, whether people received a custodial sentence or a non-custodial sentence, or were found not guilty. The first period for which that requirement would be in place would be the period from royal assent until 31 January 2023.

We have already discussed in relation to virtual trials the significance of information that relates to the scrutiny process. For the Parliament to effectively scrutinise very serious issues around which there are significant human rights concerns, not just for the accused but for all who are involved in the process, including the victim, the more information that can be provided to and shared with the Parliament, the better. The inclusion of such a requirement in the bill would send a strong message to the civil service and the justice system about the level of scrutiny that the Parliament expects to have in relation to such decisions.

I move amendment 1011.

The cabinet secretary can correct me if I am wrong, but I believe that that is the date when the provisions on virtual courts will initially come to an end, although the officials may want to come in on that point. I can be corrected later if I am wrong, but I believe that that is the case.

Basically, for as long as the provisions are in place, amendment 1034 would require the Scottish Government to lay before Parliament a report every six months. That would enable Parliament to discuss how it is going.

One of the concerns is that it might be very difficult to get virtual courts up and running if the cabinet secretary wants to get agreement on all sides, as that may be difficult to reach. That is exactly the information that should be available to Parliament to debate. If the provisions are not being implemented because defence agents and the prosecution will not agree to them, we need to have that discussion.

I am not prejudging the nature or content of the reports. I am saying that it is appropriate that the Parliament has the information available to it. If the cabinet secretary is not minded to accept amendment 1034, I ask him to consider how he could ensure that the Parliament is fully included and that as much information as possible is shared with it.

I have a specific question on your argument about cases timing out. Something that concerns me about amendment 1001, which relates to time limits on proceedings on sexual offences being extended in “exceptional circumstances”, is the risk of timing out or other unintended consequences. Have you given thought to that? Perhaps the cabinet secretary could also come back on that. Would the impact be as has been described, or could there be unintended consequences?