Seòmar agus comataidhean

What is the cabinet secretary’s view on the current access to education, training and cultural experiences for those on remand compared with that for those who have been convicted? What is her understanding of how the Scottish prison system operates?

I do not intend to press the amendment, but I am interested in exploring the issues further as the bill progresses. I want to get a better understanding of why the cabinet secretary and the Scottish Government believe that section 5 is necessary, particularly given everything that the cabinet secretary has said this morning, and whether the court already has the ability to take into account time spent on electronic monitoring. I will not press the amendment today, but we need to scrutinise the issue further, and the sentiments that I have expressed today will guide our position on the issue. It is fair to say that the committee was not completely clear on where section 5 has come from. If the cabinet secretary could give more information on that as the bill progresses, that would be appreciated.

Amendment 6, by agreement, withdrawn.

Amendment 8 moved—[Angela Constance]—and agreed to.

Section 6—Prisoners not to be released on certain days of the week

I will seek to withdraw amendment 4. However, I intend to come back to the issue at stage 3 and will look carefully at what the cabinet secretary said about the drafting of the amendment. Indeed, I would be happy to work with others to ensure that the wording is as acceptable as possible to as many members as possible who are willing to support it.

On amendment 5, I look forward to seeing what the cabinet secretary comes back with and, depending on that, I might bring the matter back at stage 3.

Amendment 4, by agreement, withdrawn.

Before section 12

Amendment 5 not moved.

Sections 12 to 15 agreed to.

Long title agreed to.

I lodged amendment 38 after working with Victim Support Scotland and other victims organisations, which are concerned about the implications of section 8. I have looked in detail at that section’s wording, and it is fair to say that the concerns are about its being widely drafted; about the fact that some detail will be in regulations, so we do not know what further detail the Government will provide; and about the lack of certainty over the definition of an emergency.

I am sympathetic to the approach that Jamie Greene has outlined in amendment 93. The power in section 8 will be permanent, so, over time, it could be used in a number of situations, including scenarios that we do not currently envisage. The provision therefore needs to be tightly defined. I am sympathetic to what the cabinet secretary has said about the extreme circumstances in which it might be necessary to take such action, but, if Parliament is to pass the bill, those circumstances must be tightly defined.

It is not my intention to push any of my amendments to a vote at this stage. However, they raise important issues in relation to the involvement of victims, which we have already discussed, and of victims organisations and the resource challenges that the justice system faces, which are unlikely to be impacted by anything in the legislation that is being proposed by the Scottish Government.

On amendment 44, as I understand it, the evidence that the committee has received indicates that the type of activities that are available to people who are on remand is greatly restricted compared with those available to convicted prisoners. It might be that the Scottish Prison Service’s practice is changing over time. It would be useful to get more information about that before the next stage of the bill.

As I said, I do not plan to press any of my amendments at this stage.

Amendment 42, by agreement, withdrawn.

Amendments 14 to 18 moved—[Angela Constance]—and agreed to.

Amendment 43 not moved.

Amendments 19 and 20 moved—[Angela Constance]—and agreed to.

Amendments 3 and 44 not moved.

Section 10, as amended, agreed to.

Amendment 45 is a technical amendment that was agreed with Victim Support Scotland. Section 11 suggests that a victim support organisation that is acting as a supporter can, of its own volition and without the victim’s specific consent, ask for information under that section. Amendment 45 would require specific consent.

Victims organisations do not believe that it is appropriate that the bill should proceed as drafted, as they believe that it would undermine victims’ agency, override victims’ autonomy and consent and undermine their trust in professionals if they were aware that information could be provided without specific consent, and that it would make victims less willing to engage in the future.

Amendment 45 would ensure that a victim support organisation can obtain the relevant information only if given express permission to do so by the victim or, in certain circumstances, on the victim’s behalf or on behalf of the organisation.

Amendment 46, which is a consequential amendment, was also agreed with Victim Support Scotland. It refers to the section allowing victim support organisations to obtain information around the victim’s right to make representations when a prisoner is being considered for release on licence. The view is that the wording of the section as drafted is problematic and raises similar issues to those raised in relation to amendment 45. The suggestion is that one way of dealing with that would be to remove that wording from the bill.

Amendment 48, again, was discussed and agreed with Victim Support Scotland. It stipulates that there must be victims’ consent to each stage—for example, victims’ consent in relation to information-sharing provisions. It replicates the Victims and Witnesses (Scotland) Act 2014 regarding the information-sharing provisions. The approach that is outlined is the approach that is being asked for by organisations that work with and represent victims. For that reason, I lodged amendment 48 to hear the cabinet secretary’s thinking on the issue and the Scottish Government’s response to the representations that have been made to members of the committee and, I suspect, to the Scottish Government.

I move amendment 45.

As Russell Findlay said, my amendment 39 is similar to amendment 95, in his name. Amendment 39 was informed, again, by conversations with Victim Support Scotland and other victims organisations. They confirm what I think that we all already know, which is that victims are not routinely consulted or involved in initiatives that are intended to address offending.

Proposed new section 34A(2) of the Community Justice (Scotland) Act 2016 sets out a list of “persons” who must

“comply with a request by the Scottish Ministers to engage in the development, management and delivery of a release plan”

for a prisoner. Amendment 39 stipulates that the persons and organisations that are listed must have regard to victims and victims organisations and must explicitly ensure that they are involved and consulted at all stages of the development, management and delivery of a release plan.

My amendment 40 would require the Scottish Government to report within one year on how the release planning process is working and to carry out a consultation on the published guidance. I note that Jamie Greene’s alternative position is to allow a longer period of time for the Government to report. I am flexible with regard to the period of time that it is believed will be required.

Section 9 imposes a duty on the persons listed to engage in the development, management and delivery of a release plan if they are requested to do so by the minister. Amendment 40 is an attempt to ensure that the process that is set out is as effective and manageable as possible for the organisations involved, and that it leads to the right outcomes.

My amendment 41 follows on from the debate on women in custody that we had at last week’s meeting. It would require ministers to carry out a review of release planning for women in custody. A key motivation for the amendment is our knowledge of the experiences and profile of women in custody, as well as the lack of data in this area.

As we know, Scotland has one of the largest female prison populations in Europe, almost 40 per cent of whom have not been convicted. Many of those women are very vulnerable, a high proportion are mothers and carers, and many have suffered brain injuries as a result of repeated domestic abuse. Refocusing the use of remand in relation to women is a wider debate, but amendment 41 seeks to ensure that some of those special circumstances, and the profile of women offenders, are factored in at the release planning stage.

It might well be that the Government’s amendment 7 deals with the issues that I have attempted to address in amendments 35 and 36. As I have said, amendment 35 was drafted after work with Victim Support Scotland, and it is also supported by Scottish Women’s Aid, ASSIST, Rape Crisis Scotland and other organisations. It would be helpful to put on the record the reasoning behind that amendment and, indeed, amendment 36, which was drafted following discussions with defence agents. I would want to go back and have discussions with those organisations before the next stage of proceedings.

On amendment 35, as we know, the bill places a duty on the court, when bail is refused, to state the grounds on which it has determined that it has good reasons for doing so. Those reasons are to be entered into the record of proceedings. In that respect, I heard what the cabinet secretary said in relation to amendment 7.

However, the concern raised by Victim Support Scotland relates to issues of equality and rights to information for victims. Although it accepts that the bill as drafted will contribute to transparency of judicial decision making around bail and will, for that reason, be of benefit to victims of crime, it believes that the provisions need to go further by ensuring that written reasons for the granting of bail are provided, too. That will enable victims to have an understanding of the court’s thinking.

Victim Support Scotland has said that, in consultation sessions that it held with Scottish Women’s Aid, women and workers for local women’s aid groups highlighted that the lack of information available to women explaining the court’s reasoning was a common and repeated issue and a source of frustration and concern to them. The organisation has therefore argued that, to ensure consistency and transparency of decision making and proceedings for participants and to assist in the enforcement of bail conditions and safety planning for victims, the reasons for refusal must also be communicated in writing to the victim, particularly women experiencing domestic abuse. I think that we will look at electronic monitoring later, and Victim Support Scotland feels that similar provisions are required in that respect, too. Moreover, the organisation has pointed out the precedent in the 1995 act for the court to give reasons for making decisions on specific aspects of bail that would have an impact on a complainer, referring to section 24(2B) in particular.

I very much welcome the cabinet secretary’s amendment, but I want to reflect further on the points that are being made by Victim Support Scotland and other organisations with regard to equality and the availability of similar information, whether bail is granted or refused.

The alternative position that I have put forward in amendment 36 came out of discussions with solicitor practitioners and, as I said, some practising sheriffs. They felt that the onerous nature of the provision and the added bureaucracy would involve more time but would lead to the same outcomes. Amendment 36 was lodged to remove the provision completely for the reasons that the legal profession has set out on a number of occasions and that are referred to in Lord Carloway’s submission to the Scottish Government.

I will reflect on what the cabinet secretary said about the provision simply being a formal requirement. However, I want to look at issues around equality and whether the proposal meets the needs of victims. Therefore, I do not intend to push either of my amendments to a vote.

Given what has been said, I will not press amendment 37, which I now withdraw. I also warmly welcome amendment 8, as lodged by the Scottish Government.

Amendment 37, by agreement, withdrawn.

Section 5—Time spent on electronically monitored bail

I will not be putting amendment 37 to the vote. I look forward to hearing what the cabinet secretary has to say about amendment 8, which also seeks to introduce a reporting requirement.

Amendment 37 relates to women prisoners. It arises out of the difficulties that exist in obtaining information about the nature of the women who are held in custody in Scotland and, in particular, the difficulty of obtaining data in relation to women who are held on remand.

Amendment 37 also arises out of the concerns that exist—I know that the cabinet secretary shares them—about the overall number of women in custody and about the proportion of women in custody who are on remand. According to the most recent figure that the committee received, 36 per cent of the women who are being held in custody in Scotland are currently on remand. We know that Scotland has the largest number of people in prison, as a proportion of the population, in western Europe. We also have by far the highest remand figures.

In addition, women make up a higher proportion of our prisoner population and Scotland has the highest number of women in prison. A higher proportion of the prisoners who are in custody in Scotland are women than is the case in other countries; I think that women make up approximately 4 per cent of the prison population.

We know from research and evidence that the courts tend to give more stringent sentences to women than they give to men for the same offences. That is not a new feature. It is not the responsibility of any particular party or of the current Government. It has been a feature of our custodial system for many generations. Across the political parties that are represented in the Parliament, there is concern about why we have such a high level of women in custody and about whether we are dealing with women offenders in the best possible ways and have the necessary range of resources and mechanisms in place to deal with those challenges in the most effective way.

As I said, I will not push amendment 37 to a vote. I am interested in hearing from the cabinet secretary about the type of information that could readily be provided to the Parliament or about systems that could be developed to provide information.

As drafted, amendment 37 would require ministers to publish a report on women who have been refused bail, which must include information on

“the nature of the offences women refused bail have been charged with”.

As I said, that information is not currently available to the committee, although equivalent information is available in relation to male offenders.

My amendment also asks that information be provided on women who have been refused bail in relation to whether they have a history of offending; whether they are classified as primary carers; their age; and any specific common health issues that they have, including physical health issues, mental health issues and any issues in relation to drug addiction. The amendment does not mention alcohol addiction, but that is another area of concern.

Amendment 37 also asks for information about the proportion of women who are refused bail who are subsequently sentenced to imprisonment. Obviously, there is concern about women who are held on remand for a lengthy period who are found not guilty when they come to trial, or who receive a sentence that is significantly less than the period that they have already been in custody.

As I said, the list that amendment 37 provides is not definitive—it is just a range of suggestions. It might be the case that certain types of data are more readily able to be calculated by the prison system and the rest of the justice system than others.

My intention in lodging the amendment is to create a pathway so that more information is available about the nature of the women who are being held in custody, so that policy makers and legislators are able to grapple with the challenges that we face and enable us to address the level of custody that is used for women, which I believe is not appropriate for the society that we live in.

I will listen very carefully to what the cabinet secretary says in relation to her amendment.

I move amendment 37.