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In other words, the effect would be to isolate the Friday. The committee report spoke to the Friday being the problem. That is the effect of your amendments.

Jamie Greene and Russell Findlay have raised some pertinent questions about the sentencing of short-term prisoners. My understanding is that short-term prisoners are those serving four years or less. I am still not too clear about what Russell Findlay’s amendment would do, so it would be useful to hear about that when he sums up. However, my reading of it is that it would require that short-term prisoners could be released on licence only if recommended by the Parole Board. Would that change the current arrangements so that every short-term prisoner would need to be released on licence, meaning that, if they offended, they would go straight back to prison? That is what it means to be on licence, is it not?

I am trying to understand that. Do you regard that as quite a big change to the system?

However, it would go through the Parole Board.

That is helpful.

Everyone seems to be content that the Government should have emergency powers. However, I make a plea for clarity and for it to be easy to read the provisions and know what the power is about. It is about risk to life and, ordinarily, there will be regulations—it is about future proofing.

I do not know what the cabinet secretary’s position is on amendment 90, but, as I said, I am sympathetic to it. My only concern is that I do not know whether it is proportionate to say that, in every case, the period should be 180 days. It is important that we get section 8 right, so I make a plea that the Government give consideration to that if amendment 90 is agreed to.

On a point that Jamie Greene made, in the scenarios that we are talking about, I do not see why the bill cannot include a requirement to notify victims. That would be in line with a principle that we all believe in, but it seems to be missing from the bill.

I begin by saying that Jamie Greene’s opening remarks on his amendments in this group put the matter really well. When we first started to look at the question of remand generally and questioned the then cabinet secretary about our concerns, the response that we got was that we could deal with some of those concerns in the Bail and Release from Custody (Scotland) Bill. We will deal with the issue of section 23D of the 1995 act later, so I will not address that now.

The committee has taken time to try to understand why the remand population is as high as it is, because that is of concern to everyone. However, I agree with Jamie Greene that further examination tends to suggest that that might not be anything to do with the provisions in the current legislation but is for other reasons. I am sure that we will continue to examine that.

That is what was said to me after the stage 1 report was published, but I am left wondering why the Lord President seems to think otherwise. Why do you think that the judiciary’s interpretation is that the approach in the bill could add on some time? I make a plea to the cabinet secretary. I support the notion that it should be mandatory for an opportunity to provide information to be provided, but the operation of that needs to be sorted out, given that the judiciary think that it could result in a lengthier process. Perhaps it is the phrasing of the bill that is the problem, which is why I suggested an alternative whereby sheriffs could determine how long the period would be.

How would what is proposed operate? Let us say that the court in question was a smaller court where there was no criminal justice social work available. In Glasgow, criminal justice social work would be available, but it would be busy. How is the system meant to operate? If you cannot tell us that now, could you discuss the issue with us before stage 3? I am not inclined to support the current wording unless we can clarify the situation. I would not be putting my argument so strongly were it not for the fact that the Lord President’s interpretation seems to be different from that of the Government.

Amendment 65, which would leave out section 3, is a probing amendment, because I would like some clarity about what that section does and what its purpose is.

Section 3 seeks to repeal section 23D of the Criminal Procedure (Scotland) Act 1995, which restricts the granting of bail in certain solemn cases. The section currently provides that bail is granted only in “exceptional circumstances”—if the accused is being prosecuted in solemn proceedings for a violent, sexual, or domestic abuse offence or a drug trafficking offence, or if they have a previous conviction under solemn procedure for any such offence. Those provisions are quite clear.

There is quite a bit of support for the removal of section 3, particularly among some members of the legal profession. In our stage 1 report, we quoted what the Law Society of Scotland told the committee:

“At a practical level, if, say, a 45-year-old man is accused of a domestic violence offence and he had a conviction on indictment for domestic violence 20 years ago, the court would not be allowed, in principle, to grant bail, unless the exceptionality test was met. If, on the other hand, that 45-year-old man had half a dozen convictions in the past three years but all on summary complaint, section 23D would not kick in.”

The Law Society went on to say that section 23D

“is a pretty arbitrary, one-size-fits-all kind of solution”.

Fred Mackintosh KC, speaking on behalf of the Faculty of Advocates, expressed a similar view that section 23D should be repealed because it is unnecessarily restrictive on the courts, and Sheriff David Mackie of the Howard League supported the removal of section 23D as he felt that

“The provisions in the bill provide sheriffs and judges with all the discretion that they need to address the concerns of victims.”—[Official Report, Criminal Justice Committee, 18 January 2023; c 18-19; 19; 42.]

When I read section 23D, I felt satisfied that, with the new bail test, the provisions were sufficient to allow the court to protect the safety of the complainer, and I think that that is the view of the committee’s adviser. However, the cabinet secretary will be aware that a number of victims organisations have urged the retention of section 23D because they are not satisfied of that.

One thing completely threw me, which is the reason why I am seeking further clarity on why the Government wants to repeal section 23D. When the committee carried out post-legislative scrutiny of the Domestic Abuse (Scotland) Act 2018—which happened after we had closed our stage 1 report for this bill—we became aware that the subsection in section 23D referring to domestic abuse had been inserted into the 1995 act only in 2018. Had I been aware of that during stage 1, I would have asked the Government why it is seeking to repeal something that went into the legislation only in 2018. I was not on the committee at that time, so I do not know the background, but I believe, from checking with the Scottish Parliament information centre, that that happened through a Government amendment.

I think that we require at least some explanation before we consider taking something out of legislation only five years after it was put in. I am interested in finding out, before stage 3, what happened in the intervening four-year period. I do not expect the cabinet secretary to be able to tell the committee that today, but I would like to know whether there is some concern about the operation of that provision or whether it is just being swept up because the other aspects of section 23D are too restrictive for the courts.

I am open-minded about it and not taking one view or the other, but I want to speak for the victims organisations that do not think that that provision is covered. That is what gave me cause for concern, and I would be grateful for some clarity around it.

I move amendment 65.

I will come back to the issue at stage 3, when I have processed it. On that basis, I will not move amendment 49.

Amendment 49 not moved.

Yes.