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On that point, I agree that there is a contradiction in saying that remand numbers are not falling and then saying that they have reduced by 10 per cent. I appreciate what you say about fluctuations, but 10 per cent is quite meaty. I know that, if the Government were using that statistic, it would hail the reduction as a success and would not say that the numbers were constant.

The wider point that Katy Clark is making is that the information that is set out needs to be seen in context. That is, what is important is not just the fact that the numbers are falling but what is happening as a percentage of the overall prison population—that is an important measurement.

However, that does not really take into account two factors. The first is the crime profile of those who are being held on remand, given that the lion’s share of them are remanded on charges that would require solemn proceedings and are therefore more serious. It also does not take into account how many of the remand population of 25 to 29 per cent—the numbers fluctuate—are on remand because of delays to trials. I do not know whether it is 10 per cent, all of them, some of them or half of them. There may be a cohort of people who are held on remand but would not be had their trials come to pass. We need to be cognisant of that as well.

Good morning. I will open my questioning with some consensus on what the cabinet secretary said about the fact that we need to be careful not to stigmatise an entire community for the actions of a small group within that community. However, we are perfectly entitled, and it is entirely appropriate, to ask specific questions about what has happened, given the very understandable public interest in the matter.

I might be a bit more simple and direct in my line of questioning in the hope that we get through this more easily. I ask quite straightforwardly: who made the decision to house Isla Bryson in the female estate?

At what point in the decision-making process did it ever seem appropriate to house a rapist in the women’s estate, and has that ever happened before?

It is a wider point. As we look to move forward and offer some clarity to the public on the issue, at what point—at any stage of proceedings—was it ever felt or deemed to be appropriate to house someone who had been convicted of the crime of rape in the women’s prison estate? Why, in anyone’s logical thinking, would that ever be appropriate?

That in itself is a problem. What do you mean by “limited information”? Surely, you should have access to fulsome information about that individual. That person has gone through quite a lengthy court process and there was undoubtedly an element of public interest in the case. At what point does the nature of the crime for which someone has been convicted become a primary factor in decision making? Clearly, it sounds as though it was not in this case.

So, the answer is that there are none. That is reassuring.

Finally, what effect does the possession of a gender recognition certificate have on your decision making? There is still a bit of ambiguity as to what the decision-making process looks and feels like. I know that you have spoken about it, I understand the rationale and I know that you have been doing it for a very long time. The actions of prison staff in handling such sensitive issues are to be commended. That is all a matter of public record. However, it is still unclear how you go about taking such decisions. I am intrigued by the effect that a legal document such as a GRC would have on your decision making, compared to the effect of someone making a different kind of declaration that does not have that legal recognition—that might include those who have gone through some form of transition.

I know that the cabinet secretary has a panic button under the desk, but I did not realise that it did that.

I will get into the main detail of my motion to annul. I am grateful to the Parole Board for Scotland for writing to the committee with a robust and informative response. I thank John Watt, the chairperson of the Parole Board, for that commentary. If I had not lodged the motion, we would not have received that communication and I believe that that vindicates my decision to bring the matter back to the committee.

I will not go through all the elements of the Parole Board (Scotland) Rules 2022. However, I would like to make the point that because it was presented to us as a negative instrument, the only option available to me was to lodge a motion to annul. There is no opportunity—as there is with other pieces of secondary legislation—to have a proper debate ahead of making that decision, or to amend the instrument in any way. There is no such mechanism available to us. Given that we are looking at such important issues, the Parliament, and the Government, in the way in which it introduces secondary legislation, might want to reflect on that.

We often pass primary legislation with promises that secondary legislation is well scrutinised. However, it is not. The fact that I have to go through this process in order to scrutinise an instrument, take evidence, get more information on it and hear what the cabinet secretary and the directorate have to say is evidence that the current process is not always fit for purpose.

I want to look at a few specific issues that I raised at the previous meeting and reflect on the responses that the Parole Board has given. The first issue relates to what we call Suzanne’s law. I declare an interest: members and the cabinet secretary will be aware that I have completed a consultation on a proposal for a member’s bill. That is relevant to today’s discussion, because much of the content of the Parole Board rules that the Government is seeking to amend through the statutory instrument would have a direct effect on the potential content of my bill and the admissibility of some of its elements. That is why it is important to me that we get to the root of the issues.

I raised the issue of Suzanne’s law, which is in effect a process by which an individual cannot be released from custody or imprisonment if they have failed to disclose where a victim’s remains have been disposed of prior to release. We all know about the tragic incident to which the name of the law relates. As always, our thoughts are with the victim’s family. Like many similar so-called laws, there is a victim of violence or abuse, who is often female.

The historical position of the Scottish Government was that it would be sympathetic to the introduction of some form of Suzanne’s law where that was technically possible. I welcomed that at the time, as did victims organisations. The changes that are made in the SSI that was presented to us seemed to offer a version of that, but it is clear from the response that we received from the Parole Board that that is not the case.

The Parole Board states that it

“may take into account a failure”

to reveal the whereabouts of a victim, and that that will be a factor in its decision making. However, I presume that that is something that the board would have done anyway—or is that a new factor? Therefore, is that a substantive change in the decision-making process?

The Parole Board then refers to the point that it is almost irrelevant anyway, because the primary test of whether someone should be released is set out in the Prisoners and Criminal Proceedings (Scotland) Act 1993, which states that the test is that

“the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”

If the answer to that question is that it is no longer necessary, the prisoner is released, and that is the prime consideration. All other factors are certainly part of that decision-making process, but the board makes it clear that

“a failure to disclose the whereabouts of a body can only be considered in the context of that overall assessment of risk”

to the public. Therefore, there is an argument that it would be virtually impossible to implement Suzanne’s law meaningfully in any shape or form under these rules without a substantive change to the 1993 act.

The Parole Board believes that amendment of the 1993 act would be required to bring this policy change into force. Therefore, although it does not form part of this instrument, the question that I would pose to the cabinet secretary is whether the Government is willing to review the 1993 act in respect of that, if such a change could be made and, if the Government is not minded to do so, why not?

The Parole Board also refers to its role in all this. If, in the scenario where a prisoner refuses to reveal the location of a victim, there is an automatic barring of release, that would in some way negate the role of the Parole Board in any decision making, because that would be the primary factor, with everything else coming second. The Parole Board also observes that such a policy may not be compliant with the European convention on human rights and I am sure that that will be used as a defence in relation to such a change.

What I am trying to probe here is what the Government’s current position is, because I do not know. Historically, justice secretaries were a little more forthcoming about this and I hope that the Government will understand why I think that it is an important change. If it becomes apparent that the Government is not willing to or, for legal reasons, is unable to progress such a policy change, naturally, it will remain as part of my forthcoming member’s bill as I go on to the drafting stage. However, if the Government is willing to work with me on any changes, it could easily be removed from that proposition.

One of the changes in the rules that we were asked to look at is around the information that is given to those who sign up to the victim notification scheme. The Parole Board makes what I think is a valid point about making sure that those who have signed up to part 1 of the VNS do not receive certain types of information that they do not necessarily want to receive. Victim support organisations have been quite explicit in their evidence that not all victims want information about what is coming next. However, there are many victims who do, and there are many who feel that they are being let down by the current process. It is important to get that on the record.

I do not necessarily disagree with the board about the change; I understand that wider changes to the VNS are outside the remit of the instrument. However, I would like an update from the Government as to what potential changes to the VNS would make it a much more compassionate, informative and trauma-informed service than it is at the moment, because it is clearly failing many victims of crime.

The other substantive issue that was raised in proceedings and responded to by the board is that of victim observations in parole hearings. In Russell Findlay’s excellent members’ business debate yesterday on victims awareness week, the BBC programme “Parole” was mentioned. It was a fascinating insight into decision making in other parts of the UK, but something that we often hear is that there is a lack of transparency in the parole system here in Scotland.

Certainly, the victims we have spoken to—not only as a committee but individually as members—feel that they are very much excluded from the process and that even when they are able to observe the process, many have had difficulties in doing so. They feel that they are afforded little to no opportunity to have any meaningful participation, and I think that it is important.

I understand the Parole Board’s defence that, if we were to confer rights on victims not just to observe but to participate in a parole hearing, that would change the game somewhat. I understand that. The board says:

“As the Board operates as a court, if a victim were allowed to present an oral statement to the tribunal, fairness would dictate that the prisoner ... would be able to cross examine the victim.”

I do not know how legally robust that assertion is, but it is something that I would like to test.

However, there is a wider point, which is that, whether we like it or not, many victims tell us that they do not feel that their needs and views are properly taken account of when decisions of parole hearings are made. That is a valid criticism, which we should be mindful of.

I am not necessarily saying that victims should be able to give oral statements in live proceedings at a parole hearing, which might not be suitable for all victims of crime, but there should be some form of meaningful participation that informs the board’s decision making. That would be a step ahead of the present position, whereby victims are simply allowed to observe. The ability to observe gives victims no rights to participate; they can simply sit there and listen. I think that there is still work to be done there.

The Parole Board raised some minor and technical issues, with which I have no problem whatsoever, and, as I said, there are other parts of the SSI around the risk management plan that I do not have a problem with. Other members have talked about prisoner preparation and other issues that the Parole Board responds to. I understand that the VNS issue is for a wider governmental review and does not necessarily fall within the remit of the Parole Board.

I am not trying to be difficult by raising the issues that I have raised. I put on the record the fact that there is nothing in the rule changes that I disagree with. However, I hope that the debate has given us an opportunity to air some of the issues, which we should have been able to do before having to make a decision on the instrument. I thank members for their forbearance.

I thank the committee clerks for scheduling this item in today’s meeting. We have a very busy agenda today, as proceedings have already shown. I also thank the cabinet secretary for attending for what, hitherto, would have been an unnecessary appearance. Nonetheless, it is an important one.

I will be honest in saying that a lot of what I have already said on the issue is a matter of public record and is in the Official Report, so I will not repeat it all. I gave some serious consideration to my motion to annul the SSI that we were presented with prior to the parliamentary recess. It is not a decision that I took lightly—in fact, it is the first time that I have done it in my seven and a half years in the Parliament. However, I felt that, on this issue, it was entirely appropriate and would be beneficial to the committee.

There is very little in the original SSI with regard to Parole Board rules that I disagree with. There are some very sensible changes in the SSI, but there are two reasons why I wanted to bring it back to the committee for debate and I am looking forward to hearing members’ thoughts. First, I believe that it is a missed opportunity by the Government to change Parole Board rules for the benefit of victims of crime in relation to the way in which some practices are managed. Secondly, this is the only method to bring it back—[Interruption.] Should I carry on? The blinds are going up and finally letting some light into the room.

Would it be possible to let other members contribute before I decide whether to move it?

Okay.

I move,

That the Criminal Justice Committee recommends that the Parole Board (Scotland) Rules 2022 (SSI 2022/385) be annulled.