Seòmar agus comataidhean

I thank members for their contributions. I feel like I am summing up a debate, when I am not, but I have spent some time on this issue.

First, I want to make clear that whatever I say next I do not say on behalf of the UK Government, the Northern Ireland Office or any other UK minister or secretary of state. These are purely my own views and those of the party in the Scottish Parliament. Generally, our party is supportive of the concept of the establishment of the independent commission for reconciliation and information recovery. That is not to say that every aspect of the bill is perfect in its current state but, like all bills—as we know only too well—this one will go through an iterative process of scrutiny. The bill will go through the due process in Westminster, which, unlike the Scottish Parliament, also has the benefit of a second chamber.

The clue is in the name. The commission is one of reconciliation and information recovery, and I believe that those are important steps forward in the peace process. The argument that both sides of the political spectrum in Northern Ireland have some opposition to it, by its very nature, demonstrates the necessity of the bill, because truth and closure are key pillars of that process, and if the independent commission—if it is really independent—can continue some of that work, that is important.

It is a five-part bill with 58 clauses, so it is complex and, although there are some controversial elements—particularly on immunity and perhaps even the issue of prisoner release and so on—those issues have been controversial for many years, as part of the peace process.

There are positive aspects on investigation of deaths, fatal accident inquiries and so on. There are many aspects to the bill, and it is very easy to take a simplistic and one-sided view on it. I am open minded to what the bill is trying to achieve, and I feel that it is appropriate to let it make its progress.

On the specifics of what we are being asked to do in the context of legislative consent, I want to comment on three things. The Government gave three reasons for opposition rather than two, I think.

The first is around concerns that were raised by the Lord Advocate, which were duly and quite well stated. When we considered the issue previously, we did not have those concerns on paper. From looking at the correspondence from the Lord Advocate to the secretary of state in the UK Government, it is clear that those concerns are well laid out. Equally, the letter goes on to offer a pathway through the concerns.

The Lord Advocate talked about a memorandum of understanding with each of the United Kingdom prosecution authorities—in relation to referrals, for example. I do not want to put words into the Lord Advocate’s mouth, but it seems that there is a genuine and constructive willingness on her part to find a solution to any conflict that might arise between her independent role as head of public prosecutions in Scotland and interaction with the bill and the powers that Pauline McNeill spoke of.

It is not quite as simple as our handing over powers from Scotland to another jurisdiction, today. It sounds as if there is an on-going conversation to be had, and we should allow that to progress. I note that it is naturally disappointing that we have not had a response to those concerns, and I hope that we will have sight of that when it is made available.

The second point is about compliance with the European convention on human rights and the potential legal implications of the bill for human rights law. I questioned that in the evidence session with the cabinet secretary, and I felt like he gave more of an opinion than anything else. The cabinet secretary was unable to point us in the direction of any specific published reviews or advice on that. It seems to be something of a smokescreen.

The third point—this is probably the one that worries me most—is the political disagreement on the bill. The Government’s primary reason for not offering legislative consent is that it believes that, as drafted, the bill is incompatible with the Scottish Government’s view that those who suffered during the troubles should be able to obtain justice. That sounds more like a difference of opinion on policy rather than one based on legality.

That is, of course, based on the bill as drafted. The bill will go through a process and I expect all parties, including members who represent the Scottish Government’s party in the UK Parliament, to conduct that process properly. We put our trust in them to do that.

For that reason, our view is that we should offer legislative consent, let the bill run its course, and work through the many issues that I have mentioned. Holding it back at this stage would be unhelpful. We therefore do not agree with any recommendation to withhold consent.

I would like to make a small request of the clerks. These LCMs are often waved through quite easily. I presume that the issue will come to a vote in plenary at some point, and it would be nice to know when that is coming up so that we can keep an eye out for it.

I have only one question. If there is a move to release more people on bail, it is inevitable that many of them will come with bail conditions as part of that, as an extra safeguard. What role would you play in that? Would that generate any increased workload for you?

Does anyone on the panel have any comments to make on the use of alcohol tagging devices as part of any condition of either bail or deferred sentencing, or as a condition of early release, as a means of keeping somebody on the straight and narrow, if you like, and reducing the potential for reoffending, given the propensity for alcohol to be a substantial driver of some of the reoffending that we see on release? That is linked to the previous question about Friday release, but it is actually about how we help people.

I will ask Gillian Booth to start, as she might have more day-to-day interaction with people in that scenario.

On the face of it, that sounds like a sensible move. If that was all that the bill did, perhaps it would be less controversial. It does not do only that, though. The other side of the bill is the question that we have not got to the root of: why there is a need to raise the bar—the threshold—of what needs to be taken into account, based on that information?

It is good that there is a route by which to get the information in front of a sheriff’s nose on the day. It sounds like there will be a huge resource implication, for you and for others, off the back of that, which we have talked about at great length. However, that still does not answer the question of why, based on that information, there is a further need to redefine the parameters of how those decisions are made. I am not asking you to comment specifically on that.

I do not feel the need to ask others to comment, unless they want to. Wave at me, if you do. Otherwise, I am happy with that.

That is an interesting response, and you have almost identified the solution in your answer. First, there is a dearth of data. Let us fix that and fix the information that is available to the Crown Office to allow it to make a better decision about whether it is appropriate to oppose bail in the first place. It may take a different view if it has access to more or different types of information—more in real time, as you say.

Secondly, we do not need legislation in order to provide more information to sheriffs and judges at the time of making those decisions; we can do that already. Indeed, there have been some recent changes to the options available to them that may have a positive impact on remand numbers, but we have not really let that bed in or given any substantial time to get qualitative data out of it. Why do we need a bill to further restrict the parameters around how such decisions are made? That is what I want to get to the root of.

Thank you for your forbearance. I want to make this point while we are in public. We have a live panel and have had two other panels. Of the nine witnesses from whom we took evidence today—this is not a criticism, so please do not take it in that way—only one responded to the call for evidence from the Finance and Public Administration Committee when it was analysing the financial memorandum for the bill. That ran from July to September. I appreciate that some organisations may not have been aware of it, because it is often difficult to uncover calls for evidence.

Today, we heard evidence on some of the work that is on-going on the bill’s potential financial and resource effect on the witnesses’ organisations, but we can use only what is in front of us when we prepare our stage 1 report. I ask all nine organisations, with the exception of Glasgow City Health and Social Care Partnership, which responded to the consultation, to raise with the committee any financial analysis or concerns in writing at the earliest opportunity, so that we can include that in our stage 1 report. Without that information, we cannot comment.

I am sorry to keep pressing on this, but I am just picking up your language and words. Is it your view that there is a wider lack of understanding of the decision-making process, or is the decision-making process itself faulty?

Let me clarify what I mean by that. I get the impression that judges and sheriffs do not take lightly the decision to hold someone on remand, so they use all the information that has been presented to them at the time by the Crown and defence solicitors and, where necessary, social workers and other stakeholders who are involved in the case. Do you think that they do not have enough information to make the right decision—that is a bit of repetition of my first question—or do you think that, because of the backlog and the volume of cases that they are trying to get through, they are not taking enough time to look at all the factors involved in individual cases and are therefore make the wrong decisions? I am still a bit unclear about what your criticism of the system is.

Thank you very much. That really helps. It clarifies your position.

I will ask the other two panel members a question. The other side of that has been mentioned. I realise that it is difficult to conjecture on this, but maybe there is concern that decisions are made because there is a lack of confidence in alternatives. That is an easy thing to say, but it is quite difficult to prove that because, surely, we would think that sheriffs and judges make decisions that are the right ones based on the information—or lack of information—that is available to them at the time. However, it would be a problem if they are making decisions to remand people in custody because they have little faith or confidence that the alternatives are there or will be delivered appropriately, safely and confidently. Is that a problem? Is it a fact that there are no proper alternatives for many people? There should be, and that would give another, better option.

That question is for Charlie Martin and Tracey McFall.

That is very helpful. I would be fascinated to hear more about what Lady Dorrian had to say on that matter.

I will move on to Tracey McFall, and I will load the question with a secondary one. As part of discovering what rightful alternatives might look like, how can we ensure that there is fairness in the system and that victims of crime—specifically those who feel that they may be harmed mentally or physically, such as those who have suffered domestic abuse or other violence of that type—are protected? I guess that there may be concern that more people who would have been remanded under the current system may be released because the new rules permit them to be released. How can we ensure that there is balance there?

That is really helpful.

I will let other members come in, because I am sure that there is a lot of interest in the bill. However, I would like to come back to funding and resource later in the session, if that is okay, convener.