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I stress to Ms McNeill that I would not narrate this as an SPS decision as such, and I would not narrate it as a position that anybody is comfortable with, necessarily. Sometimes, as Cabinet Secretary for Justice and Home Affairs, I feel the frustration of not being able to talk in a more free and frank manner. However, the reality is that, as justice secretary and as a minister in the Government, I have to uphold the law and, if I get advice on information governance or data protection, I have to comply with that, as do public bodies.

I appreciate some of the frustrations around this issue. In many circumstances, it would be far easier, if it was desirable, appropriate or, indeed, legal, to discuss individuals—

Until the statistical release—

I am telling you about the advice that I have received since I have been in office, which has come via my officials and the Scottish Prison Service as an executive agency.

Yes. Good afternoon to everybody who is present at the committee and in the public gallery.

The Scottish Prison Service has considerable experience in the management of people in its custody, as well as a duty of care for those people, and its policy upholds its responsibilities to deliver safe, secure and suitable services for all. Although the management of everyone in custody is an operational matter for the SPS, I welcome the updated policy on transgender people, which has been developed following extensive engagement and careful consideration. The policy makes it clear that a transgender woman who has a history of violence against women and girls and who presents a risk of harm will be admitted to and accommodated in the men’s estate and will not have access to the women’s estate.

I will speak briefly about each of the SSIs. The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2023 will change the prison rules to make it clearer that prison governors have discretion to allow a transgender person to be searched by an officer of their birth sex if it is necessary and proportionate to do so. That will ensure that the health, safety and welfare of the transgender individual and staff are considered in searching decisions. That is necessary to ensure that both the current SPS policy and operations on searching and the updated policy are clearly allowed for in the prison rules and that they are easily understood by those affected.

The discretion will be exercised only for the purpose of protecting the health, welfare or safety of any person or the security or good order of the prison. For example, if there is a risk to the safety of an officer in searching a transgender individual in line with their affirmed gender, the transgender individual will be searched by an officer of the same birth sex as the individual. Amendments are also proposed to make it clear that governors have the discretion to allow a transgender person to be observed by an officer of their birth sex while providing a sample for drug or alcohol testing, if it is necessary and proportionate to do so.

The Gender Recognition (Disclosure of Information) (Scotland) Order 2023 proposes to put beyond doubt that it is not an offence for staff who are involved in offender management to disclose protected information that is acquired legitimately in their official capacity and when required for the purposes of offender management. It is vital that SPS staff, justice social work services, the Parole Board for Scotland and others who are involved in the management, supervision and rehabilitation of people who are charged with or convicted of offences can, when necessary, disclose protected information, whether a gender recognition certificate has been applied for or granted, without risk of committing an offence under section 22(1) of the Gender Recognition Act 2004.

The SSIs, if passed, will come into effect on 26 February 2024, which aligns with SPS plans for implementation of the updated policy.

I understand your question, Mr Findlay, but the reality is that everybody is free to speak as they wish to. I am not aware of significant consequences for any individual involved in the circumstances that you have described. I am merely stating that, generally speaking, it is better that people respond and react to one another in a manner that respects people’s identities.

It is data protection. We have obligations under data protection and information governance.

I point to the fact that the Children and Young People’s Commissioner operates in an environment that is quite legislation heavy—for example, it involves the children’s hearings system, and a small proportion of children and young people become involved in the criminal justice system. Therefore, it is a fair comparison. All the things that you mentioned, such as court rules and procedures, scheduling, the environment and pre-recorded evidence, have a direct link with trauma-informed practice and trauma-informed approaches. Although the operational delivery of those matters rests elsewhere, the purpose of the bill, in cementing and placing duties on people to demonstrate trauma-informed practice, is to be a lever. It is not the only lever, but it is certainly a lever for changing how operational decisions are made and implemented.

Victim Support Scotland has been one of the biggest advocates for a victims and witnesses commissioner. It published a paper making the case for such a commissioner in 2021. I know that Victim Support Scotland’s Kate Wallace has given evidence to the committee.

In broad terms, yes. The provisions in the bill seek to do two things. We indeed want systemic change, and we want to develop a shared understanding and consistency of approach. We want all that, on the one hand. On the other hand, there is a recognition that justice agencies will need flexibility to implement the provisions in a way that is tailored to their context, for the very reasons that you have outlined. The bill does that by creating a statutory definition of trauma-informed practice that requires agencies to have regard to trauma-informed practice in their work with victims and witnesses. The provisions are crafted in a way that empowers courts to set rules and procedures on trauma-informed practice in both criminal and civil business.

How trauma-informed practice is defined is informed by the trauma-informed knowledge and skills framework for the justice sector, although, as with any legal definition, that has to fit in with legislation. Some definitions, such as those used in the Victims, Witnesses, and Justice Reform (Scotland) Bill, are dependent on previous legislation. As with any legislation, we are not starting from scratch.

I assure members that we have lots of discussions about resources with our partners on an on-going basis.

I think that the costs for parts 1, 2 and 3 of the bill are pretty well defined and clear. I am conscious that organisations such as the Scottish Courts and Tribunals Service are smaller from the point of view of overall budget and size of operation than the likes of Police Scotland, and that we must give some cognisance to smaller organisations.

However, it is appropriate for me to test any supplementary evidence from stakeholders about costs. It is important to remember that not all of what the bill seeks to do is about additional resource, although I do not demur from the reality that there is a cost to the bill.

Some of this is not about additional duties but about changing what we do at the core. I argue that, if we get it right and embed trauma-informed practice, that will support and encourage a more efficient justice system. It will particularly affect how we schedule, in that the implementation of trauma-informed practice is a clarion call to organise the system to reduce delays. It is all interrelated. Some of this is about approach, culture and practice, as well as being about resources.