Seòmar agus comataidhean

That is fair enough; thank you for that.

My second question follows Pauline McNeill’s line of questioning around Scottish solicitors and the regulation around that. Obviously, the Government has introduced other legislation—the Regulation of Legal Services (Scotland) Bill. What is the Scottish Government doing, given that Scotland and England and Wales have different legal and regulatory systems around the judiciary and legal services, to ensure that serious organised criminal gangs that work across borders do not see one particular environment as an easier place to do business than the other? That is a more general policy question.

The response is dated 6 April, so it is six weeks out of date. I know that the committee has not been able to consider it until now because we have had a lot on in terms of legislation, but there might be things in it that have been updated since then, so I apologise to the cabinet secretary, if she is watching.

I have a query on the court backlog. We have spent a lot of time over the past year or so talking about clearing the backlog, but my understanding of the response is that “clearing the backlog” essentially means returning to what is an acceptable backlog rather than getting to a net clear scenario.

The response says that the aim is to return to the point where the number of cases across courts is approximately 20,000, which I presume is deemed an acceptable pre-Covid level of backlog. I want to query that. I guess what I am asking is whether the Government is therefore stating that a normal backlog would be 20,000 cases, and whether the ambition is to get to that level rather than to clear the backlog in any shape or form. All we are doing is clearing the delta between what was already a backlog before Covid and what it increased to over that period.

I just want to set expectations, because we talk quite openly about clearing backlogs, but I do not think that the public fully understand that the Government is not trying to clear the backlog but is trying simply to get back to what it thinks is an acceptable backlog of 20,000 cases in the system, which is still a lot. There were lengthy delays in the system before Covid, so I do not think that that is an acceptable response. We should be pushing for a slightly more ambitious approach from the SCTS and the Government.

I cannot pre-empt the outcome of what it will say, but I understand that an Audit Scotland report on this is due out imminently. That will give us an update on the situation since 6 April. One of the things that I am quite keen to see is where there has been improvement in the clearing of cases. We should look carefully, perhaps even as soon as in the next couple of weeks, at what that data shows us about the clearing of solemn and summary cases, and the cases that are still deemed to be difficult to clear quickly.

I suspect, although I have not seen the report, that it will tell us that the most serious cases, including those of serious violence, murder and sexual crime, are still taking a considerable period of time. I will be looking to see what the updated expectation is for clearing those cases. That was my first point.

I will jump ahead to a point that Russell Findlay raised on the number of young people being held in adult institutions. The cabinet secretary’s response on 6 April said that there were eight under-18-year-olds held in a young offenders institute, but a couple of paragraphs down, it states that there is occupancy in secure accommodation. The statistics are helpful, but the wider question is, why are there under-18-year-olds, seven of whom are on remand, in YOIs, when there are places in secure accommodation?

I may be misreading the information that we have been given, but that does not add up if there are spaces in the independent secure accommodation network or elsewhere across the network. Why does the Government not want those under-18-year-olds to be in those places? I know that it changes on a daily basis, but there seems to be a pattern there that needs to be addressed.

The next page, which is page 6 of our papers, is on misuse of drugs and the work on the drug treatment and testing orders. The Government talks about the review and the final report on areas for consideration, and it says:

“We expect to report to be published in spring 2023.”

I wonder whether that report has been published since the letter was produced. Perhaps we have missed it or it is due shortly. My worry is that spring 2023 in the language of Government could be as late as the last week of June, which is technically when summer starts, which leaves us no time to look at the report as a committee between now and September. I would be keen to get off-the-record knowledge of when that might be published and, if we could look at it before summer recess, that would be very helpful.

The next point that I want to raise is on deaths in custody, which are dealt with on page 7 of the paper. The Scottish Government said that it has

“no intention to create an online centralised system where delivery of the recommendations can be tracked”.

There is a short response from the Government on that, but it is clearly sticking to that position. The problem that we have with that is that the families of those who have sadly lost their life in custody are looking for much more than one paragraph of a review, with respect to Ms Imery.

There cannot be lessons learned if there is no centralised system. There is a centralised system to track committee recommendations and any progress made on them, but it seems to me that, every time there is a fatal accident inquiry or an investigation into a death in custody, many of the same recommendations are made, time after time and year after year. We are quite good at tracking the Government’s progress on whether it is doing what it has said that it would do, but the Government’s response will be disappointing for the families who are asking for the Government to do more and for lessons to be learned. I am hoping that the Government will expand on more of the work that it is doing in order to give some comfort to those families.

Lastly, I will address legal aid reform and the legal aid reform bill. The Government has said that it is

“committed to reforming the current system of legal aid”

and that it will do so

“within this Parliamentary Session.”

In my conversations with solicitors, they have said that they cannot wait until 2026 for that reform. There are some temporary measures that are in place on fees, but that position is not sustainable and it does not provide any long-term comfort to people who are in the legal profession. I am hoping that the cabinet secretary could elaborate on what “this Parliamentary session” means from a timetabling point of view, given how busy the Parliament and our committee are already—assuming that the legal aid bill will be discussed by this committee. I am hoping that the bill will be introduced sooner, rather than later, in the parliamentary session so that we can do it justice and give stakeholders adequate opportunities to get involved in the process.

I apologise for being unable to make the visit. I wonder whether the SPS would be willing to host members of the committee who were unable to make that visit. It would be very interesting to get a proper tour of the prison, perhaps once it is operational. I know that that would make it slightly more difficult, but there is certainly a willingness among members to go back or to attend for the first time.

Obviously, the SSI is a legal instrument, which means that the site can be used only for a prison building. Has the Government indicated what its plans are for the old building or the wider site? That question might have been answered yesterday—it probably was, as I imagine that someone will have asked it.

If it is no longer being used as a prison, what will happen? Will it just be demolished and remain Government property?

Does the report reflect that there is clearly positive dialogue between the two Governments, which is helpful in this scenario, given the subject matter? Clearly, there is some mopping up to do, which I do not have any particular view on; it is for the Governments to decide on that. It is clear that there has been some movement already, and some amendments have been proposed by the Scottish Government, which I think is fair and due process.

Russell Findlay made an important point. It was quite a meaty report that only appeared in our papers this week, it was followed up very late in the day yesterday with the DPLR Committee report and it is complex and technical in nature. I would request that we ask the Government to give us notice of complex LCMs, as far in advance as possible, to give members time to read what turned into “War and Peace” committee papers this week. That would be helpful and it might mean that we would spend less time in session discussing it.

I have completely forgotten what I was going to ask, but I will try to pick up the pieces and move on. I will have a second question that is linked to the one that Pauline McNeill has just asked.

My first question is on petitions to wind up limited partnerships. If I heard the minister correctly, I think that he said that the secretary of state can apply to a Scottish court with the consent or support of the Scottish ministers—I think that that was the language used—or that the Scottish ministers could raise a petition themselves. It therefore sounds as though there might be two avenues to petition the Scottish courts. What scenario planning has there been for any dispute resolution mechanism should the secretary of state intend to raise a petition but ministers disagree, or vice versa? I know that that is a minor technical point, and such a scenario might never happen, but I wonder what the process for dealing with it would be.

I am not sure that we should be reticent about making changes such as the one that is proposed in amendment 70 based on the question of how well resourced the Parole Board is. The Parole Board will need to be resourced to the level to which it needs to be resourced in order to meet the legislation that we put in place.

If the issue is about public safety or the suitability of a prisoner to be released and the likelihood of their reoffending after release, that should be the primary consideration, not the effect that the proposal might have on how much work the Parole Board has to do.

It is quite a short amendment and we are trying to get our heads around what it would do and why. Is the scenario that you are explaining that, prior to the Parole Board considering someone’s release, Scottish ministers could direct their release and that would be the end of the matter? In which circumstance would Scottish ministers want to release someone earlier than the Parole Board would decide to? It is not clear cut; the case has not been made.

I will describe what my amendment 93 would do. If members look at page 11 of the bill, they will see, about halfway down, proposed new section 3D of the 1993 act, which is about parliamentary scrutiny of regulations made under proposed new section 3C. It says:

“Regulations under section 3C are subject to the affirmative procedure, unless”

the following applies, and there is a list of situations in which that scrutiny would be removed.

My amendment takes a simplistic approach, perhaps, but it would remove the rest of section 3D down to the end and just before the beginning of proposed new section 3E on the following page. The reason for that is simple. It would remove the Scottish ministers’ ability to release prisoners under section 3 of the 1993 act without some form of parliamentary scrutiny or, indeed, a vote.

Affirmative regulations are often debated at committee, which could be an appropriate place. Indeed, over the years, this committee has given a number of Scottish statutory instruments full scrutiny and debate. Sometimes, we have even pushed an SSI back or brought it to a vote when there was disagreement. Therefore, the affirmative procedure is a suitable means of scrutinising such decisions.

I will come on to amendment 38 in a second. It clearly goes a step further. However, my amendment 93 would remove the problematic part of proposed new section 3D.

The bill states that the Scottish ministers can release prisoners under the made affirmative procedure if they

“are of the opinion that, by reason of urgency, it is necessary to make the regulations without their being subject to the affirmative procedure.”

In her comments, the cabinet secretary said that that would impair their ability to make immediate decisions.

I will make two points in response. The first is that it is entirely possible for Parliament to make laws in an emergency situation when it is necessary to do so. The sort of emergency situation in this case remains unknown, because the cabinet secretary was unable to tell the committee what situations would be suitable for use of the power. During the passage of the coronavirus legislation, we, as a Parliament, even when not sitting in person, were able to pass quite sweeping laws in very short timescales. In fact, the Government makes use of emergency protocol to pass law when it suits it. Therefore, I cannot understand the rationale behind ministers arguing that their ability to make decisions would somehow be impaired.

There is the fundamental point that Parliament should be able to scrutinise such decisions, because we do not know the volume of prisoners who could be released or the reasons that could be given. At the very least, as a courtesy to the committee or to the Parliament itself, the Government should be forthcoming with its plans to do that, even at short notice, to give Parliament some say in the matter, so that it can be properly debated. It is a very sweeping power.

There is some definition of what would constitute an “emergency situation” on page 10 of the bill. For example, it refers to a

“situation which has resulted in any prison (or part of a prison) ... being unusable”.

Half of Greenock prison is unusable—does that mean that ministers could release prisoners on the basis that there was a water leak or damp? What if, for example, the Health and Safety Executive deemed a prison to be unsuitable and breaching international human rights legislation? Would that constitute a reason for release?

The answer is, “No, probably not,” and the answer from ministers in that scenario would probably be that it would not, but the provision as currently drafted says that they could do so. That is the problem.