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And the prisoner would have to consent to it, too.

I will ask officials to come in, but I am not aware of any area of crime that is not covered by the order. You, too, have highlighted the issue of customer accounts and information—and rightly so—which is obviously to do with the financial aspects of a potential crime. However, that sort of thing will rely on the witnesses’ co-operation. As I have said, though, I am not aware that the order precludes any crimes being looked at—and I see that Vivienne McColl has confirmed that.

We cannot tell other countries what crimes they might want to come to us about and ask for the help of the Lord Advocate and witnesses on. In that case, the answer is yes—any level of crime is possible.

The list of countries is exactly the same. Russia has been precluded by the UK Government, too. The issue is simply that we have a different jurisdiction. I am aware of no tangible differences between our instrument and the one for the rest of the UK.

I was trying to answer, but you would not allow me to answer. That was the point that I was trying to make. Can I try to answer now?

At the time, I said to the Parliament that I had faith in the basis on which the Scottish Prison Service deals with prisoners who are transgender. It has an extremely strong track record on that. It has managed to protect women, other prisoners and staff. I expressed that support for the Prison Service at the time, and I am happy to express it again now.

As you have mentioned, there was a substantial degree of publicity around that. Obviously, ministers have discussions with officials and the agencies for which they have responsibility.

As I say, the process that was followed in this case is the process that is always followed, and I have faith in that process. There is very little evidence to suggest that how this individual prisoner was dealt with would have been different in any other circumstances.

I repeat the point: I have faith in the Scottish Prison Service’s ability to deal with the issue. Changes, which I mentioned in my opening statement, have been announced to provide further reassurance, and I think that that was the right thing to do.

Thank you for giving me the chance to make a contribution in support of the Parole Board (Scotland) Rules 2022 and to debate the motion that Jamie Greene has just moved.

I understand that the committee had some concerns—Jamie Greene said this—about the amount of time that it has had to consider the rules. It is important to make it clear that, as SSI 2022/385 was laid in December and will come into force in April, the full 40 days that are required by Parliament for parliamentary consideration to take place have been provided. The issue of whether the committee wanted to consider the matter prior to that is not one that I have a say on.

I am sure that the committee will appreciate the need to provide the new rules and procedures for the Parole Board. The previous rules date from 2001, so they are more than 20 years old. In that time, they have undergone multiple amendments, which has led to them becoming more complex and inaccessible. They are in need of change. Making them as clear and understandable as they can be seems a sensible thing to do.

The new rules bring a new and simplified structure to the Parole Board’s rules and align some common processes. For example, all oral hearings on parole cases will now follow the same procedure. The new rules also introduce procedures to clarify existing practice and improve processes. They aim to provide the Parole Board with effective and transparent procedures that help with the smooth running of Parole Board business.

If we were to annul the rules, as Jamie Greene proposes, that would mean that we would lose all the benefits that they would bring, such as avoiding retraumatising victims. For example, new rule 9(2) allows a victim statement to be withheld from the dossier that is given to the prisoner, if they should wish their views to remain private and the Parole Board considers that it should be treated as non-disclosure. That would be lost if the instrument were to be annulled. The rules will also ensure that victims will be given only the information that they signed up to receive when they registered with the victim notification scheme, which is a point that Mr Greene addressed.

The new rules will improve the process for prisoners by ensuring that they are better prepared for a hearing. They provide for a new procedure to allow the Parole Board to appoint a representative for prisoners if they lack the capacity to appoint one themselves.

It is important to note that the rules have been developed with the Parole Board to ensure that they are workable and fit for purpose. They build on consultation with the public that was carried out last year, and they reflect our engagement with other stakeholders, including, importantly, Victim Support Scotland, the Risk Management Authority and the Law Society of Scotland.

I will cover a couple of Mr Greene’s points. He spoke about the whereabouts of the body of a murder victim not being revealed and asked whether we have any proposals to change the law in that regard. Importantly, criminal law already permits failure to disclose a body to be taken into account when sentencing. It also contains an offence of defeating the ends of justice and that can and has been used in cases in which a murderer has failed to disclose the location of their victim, as it was in the Suzanne Pilley case when sentencing David Gilroy.

The court can take into account all charges when sentencing to ensure that a suitable sentence is imposed to account for all criminal conduct. The role of the Parole Board is to assess when a prisoner, having served the sentence that was handed down by the court, might be released without posing a risk to the community. I think it right that decisions on risk and release are made on a case-by-case basis by the independent Parole Board, which can take into account all relevant information.

Denying parole to someone solely on the grounds of their not revealing the location of a victim’s body might also—Jamie Greene mentioned this—create ECHR issues. For example, a proposal that required a prisoner to be held indefinitely until they provided certain information—if we leave aside the fact that they might not know or remember the information in question—might not be compatible with article 3 ECHR rights, which prohibits inhuman or degrading treatment. Therefore, life sentences require to include safeguards against indefinite detention without possibility of release.

The proposal also appears to be inconsistent with existing safeguards for human rights that form part of sentencing and parole processes. It suggests that prisoners would be detained for longer than the punishment part that the court imposes, with no possibility of parole due to lack of co-operation. That might cause issues of arbitrary detention contrary to article 5 of the ECHR and might interfere with the right to silence, which article 6 protects. Therefore, the proposal touches on fundamental human rights.

To answer Jamie Greene’s question directly, the Government has no plans to change legislation in the way that he has suggested.

Jamie Greene also mentioned his proposed member’s bill. As I have said before, I am more than happy to discuss this and other issues as part of that process.

I covered the issues in relation to victim notification earlier in the statement. However, the Parole Board has indicated that it will prepare guidance for its members on the new rules before they come into force on 1 April 2023, unless, of course, Parliament votes to annul the rules.

For the reasons that I have mentioned, and for a number of other reasons that time prevents me from mentioning, I think it important that the rules are passed. I urge Mr Greene to withdraw his motion to annul. If that does not happen, I urge committee members to oppose the motion.

I am happy to answer any questions that the committee might have.

Let me finish my point. You have asked a question.

I know about and can speak to current policy, because I am involved in the process as a cabinet secretary. In the review that is currently taking place, people are being consulted with, including female prisoners, which is important, as well as other interest groups. I cannot speak to what you are asking about, as I was not in post as Cabinet Secretary for Justice and Veterans in 2014. I think that it is important—