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Risk assessment is at the core of these provisions, for all offence types. There are risks if we start including or excluding certain offences. Given that this provision is for long-term prisoners, thorough risk assessment procedures should be applied to all prisoners who are being considered—and, of course, they are only being considered—for release on the temporary reintegration licence. There is no automatic entitlement to that.

In the provisions, there is a clear commitment that the Parole Board and the Risk Management Authority will be consulted in relation to prisoners for whom the Scottish ministers are considering release. I appreciate that the language of legislation can be confusing, particularly in terms of who and what “the Scottish ministers” are. In some scenarios, the phrase means the Scottish ministers; in other scenarios, including in this case, it means the Scottish Prison Service. That is because of its nature as an executive agency.

It is important, when we are considering the involvement of the victim and the recognition of their need for information and security, that we look at the issue as an end-to-end journey. I appreciate that my remarks might seem quite narrow, but they are specifically in relation to the bill. We need to look across the piece. Of course, victims have a right to make representations to, for example, the Parole Board.

Again, at the risk of my comments sounding quite narrow, I am speaking to specific amendments on a specific part of the bill. The Community Justice (Scotland) Act 2016 is focused on offenders, not victims. Whether we are talking about victims or those being released from prison, any amendments on victims might not fit with that act in terms of achieving support and improved outcomes.

We have to be really clear about the detail. I am more than willing, in the time between now and stage 3, to delve even deeper into the detail. I am conscious that this is a large piece of legislation that is amending several existing pieces of legislation. However, as Mr Greene says, it is important—whether for victims or the accused—that we get all the detail right.

There are also limits on the information that can be shared about individual prisoners, and therefore it is not clear what role a victim or a VSO could reasonably play in the management and delivery of a prisoner’s release plan.

I am concerned about the potential consequences of Ms Clark’s amendment 39 and how it would interact with the existing processes under the victim notification scheme. For that reason, I cannot support amendment 39 and ask Ms Clark not to move it.

On amendment 95, I think that Mr Findlay and I probably have a completely different view about what the amendment would achieve. The amendment seeks to include victim support organisations in the list of public bodies in proposed new section 34A(2) in the 2016 act that have a duty to comply with a request from the Scottish ministers to engage in the development, management and delivery of a prisoner’s release plan. As with amendment 39, I am not clear what role VSOs could appropriately have in the development, management and delivery of a prisoner’s release plan. In the light of that, I cannot support amendment 95 and ask Mr Findlay not to press it.

The proposed definition for victim support services in amendment 98, which is intended to bring in organisations that provide support services, does not work, as there is no corresponding definition in proposed new section 16ZA of the Criminal Justice (Scotland) Act 2003, to which Mr Findlay’s amendment cross-refers. Further, on the basis that amendment 98 is dependent on amendment 95, which I have urged Mr Findlay not to press, I do not think that it would be necessary to pass amendment 98, so I ask Mr Findlay not to move it.

The specific intention of amendments 96 and 97 is not entirely clear from the text alone. It would appear that, taken together, the intention of amendment 97 is to include victims in the definition of a “relevant individual” for whom release planning can take place, alongside individuals on remand or serving custodial sentences.

As I discussed previously, the intention of section 9 is to require earlier engagement in a prisoner’s release planning by the universal services that they will need on release to reduce their risk of reoffending. Victim safety will be a key part of that planning. Prisoner release planning is not the same as victim safety planning and I fear that amendments 96 and 97 risk conflating the two. I therefore cannot support them, and I ask Mr Findlay not to move them.

Amendment 41, which was lodged by Katy Clark, would require Scottish ministers to carry out a review of release planning for women within two years of the section coming into force, and to publish a report on its findings. The Scottish Government and the Scottish Prison Service recognise the specific needs of women in custody. That is why we are taking a different approach to the women’s estate and why the strategy for women in custody is so important.

As I said in response to Russell Findlay’s amendment 71 in an earlier group, I am minded to lodge a stage 3 amendment that will encompass all the various asks for reviews of different sections of part 2 to provide a more coherent picture. That could include a focus on release planning for women. In the light of that, I ask Ms Clark not to move amendment 41.

Before I address the amendments lodged by Katy Clark and Russell Findlay, I will speak to the amendments in my name.

Section 11 allows victims to nominate a victim support organisation to receive information regarding the release of a prisoner in their case. That is intended to enable a more trauma-informed approach to the information sharing and to allow victims to be better supported in release planning.

During stage 1, concerns were raised that the bill as drafted would have the unintended consequence of allowing a victim support organisation to request information on behalf of a victim when that victim had not given consent. We have lodged amendments 21, 24 and 105 to address that concern, so that VSOs will be required to secure a victim’s consent before requesting any information about a prisoner on behalf of a victim that they are supporting. Amendments 21 and 24 will require consent for information in relation to prisoners with sentences of 18 months or more, and amendment 105 is an equivalent amendment in relation to victims of prisoners whose sentences are under 18 months.

Amendments 22, 23 and 25 to 27 will extend section 11 to victims when the perpetrator is a patient in the forensic mental health system. When a perpetrator is subject to a compulsion order and a restriction order, amendment 23 will enable victims to nominate a VSO to receive the information that the victim is entitled to and will give VSOs the right to ask for that information. The Scottish ministers will provide the information if they are satisfied that the victim has consented to the VSO making the request.

Amendment 25 will give a VSO that is nominated by a victim the right to be told about certain decisions. As with amendment 23, VSOs will be able to request the information when they have consent to do so.

Amendments 22, 26 and 27 are technical amendments to the 2003 act in consequence of amendments 23 and 25.

Over 2010-11 to 2019-20.

I will speak to amendments 28 and 29 and then to other amendments in the group.

Although concerns have been expressed about resourcing the role of justice social work, the bill requires only that the courts give justice social work the opportunity to provide information relevant to the question of bail; it does not place a duty on justice social work to do so. We deliberately framed the provisions in that way to ensure that local authorities will always have the opportunity to provide information but that it will be for them to decide whether to do so in any individual case.

That is why I said that I was happy to discuss the matter further with Liam MacArthur ahead of stage 3. However, we must be very mindful of unintended consequence in that area, for the reasons that I have laid out.

It is also important to stress that the prosecutor, who acts independently in the public interest, is best placed to provide complainer safety information to the court, which would be presented as part of their submission on bail.

I will address some of the resource issues before I move on to the amendments in the group that were lodged by Collette Stevenson.

As I have already said to committee, I understand the concerns about the potential financial impacts of the bill. Those are laid out in the financial memorandum, but, to offer further reassurance to committee, I note that we have worked with Social Work Scotland, which is supportive of our approach in and around justice social work and bail. That also applies to the Convention of Scottish Local Authorities, the Scottish Courts and Tribunals Service and others. We engaged with those organisations as part of our work to establish the estimates in the financial memorandum. I stress that we will continue to work with those organisations on the implementation plans for the bill. As we all know, Parliament agrees to the Scottish budget annually.

Collette Stevenson’s amendments 52 and 54 would prescribe certain information relating to the complainer that justice social work must put before the court when taking up the opportunity to provide information that is relevant to the question of bail. I understand the intention behind the amendments. However, they would have very considerable resource implications, as justice social work is not usually involved in providing information to the court about complainers. There has been no consultation on creating such an expanded role for justice social work, and we have already heard concerns about resourcing.

That aside, it is unrealistic for justice social work to provide information of that kind in the timescales prescribed by the bail process, particularly in custody cases, because justice social work may not have any pre-existing relationship with the complainer. We also know from the experience of specialist domestic abuse advocacy services such as the advocacy, support, safety, information and services together—ASSIST—project that, in the wake of the trauma and confusion of an incident, complainers are not always physically or emotionally safe enough at that stage of the process to engage.

An amendment of the bill is not necessary to broaden the role of justice social work, because section 1 does not prescribe the type of information that justice social work must provide on the question of bail. Given those concerns, it is something that could be for consideration in the medium term, and I would be happy to discuss further what, if anything, could be planned for outwith the bill process.

Pauline McNeill’s amendment 53 seeks to provide that, where justice social work intends to provide information to the court on the question of bail, it must do so within timescales determined by the sheriff or judge. As I explained in relation to amendment 49, any delay in justice social work providing information would not change the timing of the bail decision.

Before I go through my speaking note and make the remarks that I need to put on the public record, I will respond to Pauline McNeill’s point about the committee’s post-legislative scrutiny of the Domestic Abuse (Scotland) Act 2018. I put on the record that I have obviously received the work that the committee has done in that regard, and I very much welcome it. I will seek to respond once I have had the opportunity to discuss the detail with our justice partners. However, my intention is to respond to the committee as much as I can prior to stage 3, because I think that that would be helpful. Pauline McNeill also asked why we are removing section 23D now. This is taking place in the broader context of our work with partners on remand issues.

I will now speak directly about Pauline McNeill’s amendment 65, which seeks to remove completely section 3 of the bill. As we know, section 3 repeals section 23D of the Criminal Procedure (Scotland) Act 1995. The amendment would mean that the current restriction on bail in section 23D would continue to apply alongside the newly proposed bail test that is set out in section 2 of the bill. I understand that the amendment has been lodged because of concerns that have been expressed that the repeal of section 23D could put victims of violent crime, domestic abuse and sexual offences at greater risk of harm. It is entirely right to ask questions about the impact of the repeal, and I want to address them directly.

First and foremost, I want to reassure all victims of crime and those who tirelessly represent their interests that I am clear that remand will continue to play an essential role in protecting victims and the wider public. The bill does not change that. Public safety and victim safety are at the heart of the new bail test. As I have said, there are, of course, occasions when remand is absolutely necessary in order to protect victims from harm, particularly in cases of sexual or domestic abuse. The new bail test will ensure that that can happen.

The bill proposes to repeal section 23D for one simple reason, which is to ensure that the same core bail test applies in all cases. In its place, the new bail test explicitly highlights for the first time the importance of ensuring the safety of victims from harm. The bill not only does that but defines safety from “harm” as safety from both “physical or psychological harm” in recognition of the harm that is caused by threatening or coercive behaviour, which is an insidious feature of domestic abuse. That means that, when the court considers that an accused person poses a risk to public safety, including the safety of the victim—the type of person to whom section 23 currently applies—remand can be used. In fact, the proposed changes to the new bail test emphasise that.

I note that, as Pauline McNeill mentioned, there is strong support for the simplification measure among those who use bail law. It has been said that repealing section 23D gives the court improved, rather than reduced, discretion to fully consider the facts and circumstances of each case, including the risk of harm that is posed to victims.

For all those reasons, I ask Pauline McNeill not to press amendment 65. If she does, I respectfully request that committee members vote against it.

As a point of information, I note that, in the period 2010-11 to 2019-20, the number of offences that were committed by a person while on bail fell by 18 per cent, from 8,261 in the year to 6,800.

I will speak to amendment 7 and the other amendments in the group. Amendment 7 seeks to address the concerns that the committee highlighted regarding the potential additional burden that might be placed on the courts by the recording requirements that are contained in section 4 while still ensuring that the core information that is required to monitor the use of remand by courts is recorded.

In particular, the committee asked the Scottish Government to revisit the recording requirements in section 4 in order that they be made less onerous. Amendment 7 responds to that request. As such, it narrows the recording duty in the newly proposed section 24(2AA)(b) of the Criminal Procedure (Scotland) Act 1995. It does so by removing the requirements for the court, when remanding an accused person in custody, to enter in the record of proceedings, first, where it relies on the failure-to-appear ground in section 23C(1)(a) of the 1995 act as the sole basis for remand and the reasons why it considers that that is necessary and, secondly, the reasons why it considers that electronic monitoring of bail is not appropriate or an adequate safeguard. However, the requirement on the court to verbally state those reasons when bail is refused remains unaltered.

The effect of the amendment is that courts would be required to formally record in the court minutes only

“the grounds on which it determines, in accordance with”

the new bail test,

“that there is good reason for refusing bail”.

Turning to amendment 66, in the name of Rona Mackay, I have reflected carefully on the evidence that was given during stage 1 scrutiny. Special conditions of bail can help both with protecting the complainer from the risk of harm and by providing reassurance that any attempt by the accused to cause them harm would amount to a breach of bail and would allow the police to take action. That requirement was originally introduced in the 1995 act in respect of people accused of sexual offences, and I am persuaded that there is a good argument for extending it to cover those who are accused of domestic abuse or stalking, which are also offences in which the perpetrator singles out a specific victim.

By ensuring that the court must justify any action not to put in place additional protective conditions in those cases, the amendment will emphasise to the court the importance of appropriate special conditions of bail in cases of domestic abuse and stalking, and it will improve the transparency of court decision making. I ask members to support Ms Mackay’s amendment.

Amendment 35, in the name of Katy Clark, seeks to make changes to section 4 of the bill by further amending section 24 of the 1995 act so that the court must state certain grounds and reasons for the granting of bail and have those grounds and reasons entered into the record of proceedings.

As I have mentioned, an expansion of the recording duty falling on the courts as a result of section 4 directly contradicts the committee’s specific recommendations in this area. It asked the Government to revisit that section in order to reduce, not increase, the recording duty.

Amendment 35 would place an increased burden on the courts in a very large cross-section of cases that enter the system. That might require further information technology changes by the Scottish Courts and Tribunals Service and might increase the length of court hearings, with potentially very little analytical value. That is because there is an overarching legal presumption for bail, which should be refused only when there is good reason for doing so. As such, bail is, in effect, the default position.

With any requirement to provide reasons why bail has been granted, one could simply point to the legal requirement to do so—namely, that there is no good reason not to grant bail. The amendment would also require the court,

“in any proceedings in which a person is accused of an offence”,

to explain certain things, including why

“the accused does not pose a risk to public”

or complainer safety. That is an extremely broad requirement that would apply to all cases that enter the system, not all of which would involve a public safety-related offence or an identifiable complainer.

More generally, it is already a requirement under existing bail law that, whenever the court grants or refuses bail, it must state its reasons for doing so. The bill does not change that. As such, the information that is listed in amendment 35 is information that the court may already verbally state in open court under that duty.

During stage 1, the calls for improved data gathering were generally focused on gaining a better understanding of remand. As such, and for all the reasons that I have outlined, I ask Katy Clark not to move amendment 35.

The final amendment in this group is amendment 36, also in the name of Katy Clark, which seeks to remove section 4 in its entirety, with the effect that the duty in that section on the court to state and record its reasons for refusing bail would not be introduced. Again, that contradicts what was said in the committee’s report, so I ask Katy Clark not to move amendment 36.

The policy intent behind section 4 is to help to improve, over time, understanding of the use of remand and to emphasise the importance of its being used only as a last resort. The availability of richer and more detailed data on the use of remand was universally supported during stage 1 evidence-taking sessions, and amendment 7 would, if agreed to, address concerns that were expressed by the committee about the potential burden that the recording duty, as originally drafted, would place on the courts.

I move amendment 7.

I indicated earlier—in relation to the amendments in and around justice social work, for example—my willingness to have further discussions, whether that is on legislation or non-legislative approaches.

I know that we have not yet got to these matters but, with regard to reporting, I am willing to ensure that we have the right reporting mechanisms that can give us some facts, in particular through the use of data to help our understanding. I hope to do that in a way that is comprehensive, and through a more collective approach, because—this is not meant disrespectfully—if it is done sporadically across various amendments from different parties, the result could be less than cohesive.

There is another factor to bear in mind, which gets to the core of Mr Greene’s concern. It is about risk, and how all the players—the prosecution, the defence and justice social work—take information and evaluate the risks, and come to a judgment about those risks, whether to victims or to the public more generally.

The bottom line is that risk is appropriately a matter for the court, because it will adjudicate on that when it makes its bail decision. Of course, it is also a matter for the individual players, whether those are justice social workers or the prosecution, who will provide information that is based on an understanding of risks or potential risks.

Those are matters of professional judgment, and they are quite difficult, if not near-impossible, to legislate for in the bill, but there are other ways in which we can tackle the issue—for example, through other aspects relating to the bill such as standard operating procedures, risk assessments or throughcare standards. It is not due to a lack of willingness on my part.

In conclusion, for the avoidance of doubt, I ask members not to press or move their amendments in this group. If they do so, I ask members to vote against them.