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I understand how difficult and emotional it can be for victims and their families when the prisoner who is linked to their case comes up for parole and potential release. I have met with a number of victims who have shared their experiences with me and told me how they feel the system can be improved to better support them though that part of the justice process.

We all want to ensure that victims and their families are informed about how and why decisions are made and to have an effective system in place for the release of prisoners that keeps victims and their families informed and supported while maintaining the confidentiality and integrity of decisions and the safety of all involved.

The issues raised in this group are deeply sensitive and so I will take time to state my reasonings on my positions.

I start with Jamie Greene’s amendments 249 and 250. I accept that there is a strength in the sentiment that has been expressed. However, I urge Mr Greene not to press amendment 249 or move amendment 250 and to instead work with me in advance of stage 3 to develop alternative drafting to ensure that the legal and operational aspects are fully considered.

The intention behind amendment 249 is that the Parole Board for Scotland

“must take into account the ... impact of its decision on the safety and security of ... any victim”

and any of their family members. The decision on whether to release a person on parole licence is a matter for the Parole Board for Scotland, which is independent of ministers. The safety of the victim and of their family members is already taken into account in existing rules regarding the consideration of public safety, which means that the Parole Board must assess when a prisoner may be released without posing a risk to the community, including a risk to victims. Amendment 249 would pose an operational challenge for the Parole Board when it comes to identifying victims who are not signed up to the victim notification scheme.

Amendment 250 would require that prison governors, when considering whether to grant a prisoner temporary release, must take the safety of the victim or victim’s family into account. There are already clear directions in the prison rules that instruct prison governors to assess the risk that the prisoner may pose a danger or cause harm to the public.

The Scottish ministers’ directions on the operation of temporary release reinforce the requirement that the governor must assess whether the prisoner might cause harm to the public. The governor must also consider the views of victims where those views are known to them.

As I said, there is a strength in the sentiment, but we should consider the effect of the amendments—legally and otherwise—in advance of stage 3. I am happy to do that.

I acknowledge the important concerns that motivated Jamie Greene to lodge amendments 256 and 257, and Sharon Dowey to lodge amendments 258 and 259. However, I cannot support those amendments today.

The Parole Board operates with the primary aim of assessing whether an individual is suitable for release, based on their readiness to reintegrate into society and on the risk that they might pose. The process is conducted carefully and with all relevant evidence being taken into account. Although transparency is important—I stress that it is important—there must be a balance to ensure that the Parole Board’s decisions, which involve highly sensitive information, are made independently and based on a thorough assessment that is given without fear or favour. It is also important to ensure that sensitive personal information about the offender and about victims and others involved in the case is not disclosed unnecessarily and does not unintentionally compromise safety.

We all very much agree on the desire to ensure that victims and their families feel informed and supported. It is absolutely essential that those who are impacted by crime can engage meaningfully with the process and we all want to ensure that they are treated with dignity and respect. However, I do not believe that the proposed changes require primary legislation. Instead, they should be considered as part of the broader Parole Board for Scotland rules. I fully intend to include consideration of the issue in the consultation on parole reform that I discussed when commenting on the amendments in group 13. One reason for that comes from some of the issues that Ms Clark touched on regarding the status of information.

I ask Mr Greene and Ms Dowey not to move amendments 256, 257, 258 and 259, and to allow the consultation to run and gather the widest possible range of views on the matter. If those amendments are moved, I ask the committee to oppose them.

I turn to Mr Greene’s amendments 251, 260 and 261. Once again, although I recognise that the issues raised in the amendments are deeply sensitive and are a cause of on-going concern for victims’ families, we must, even with regard to such emotive issues, also consider the practical and legal issues that arise.

Amendment 251 says that, when deciding whether to grant parole, the Parole Board

“must take into account any remorse shown by the prisoner in relation to the impact of the ... offence on any victim”.

I understand that Jamie Greene does not intend the measure to require the prisoner to admit guilt through that expression of remorse in order to be granted parole if no such admission has previously been made. As he says, that would clearly raise other legal concerns.

Release on parole does not depend solely on the individual admitting guilt or showing remorse for their actions. The board takes into account the full circumstances of the case, including the offence itself and the trial judge’s report as well as the individual’s behaviour in prison. The board can also examine whether the prisoner has taken steps to address any underlying issues that may have contributed to their behaviour or that could inform their future actions. In part 2 of the Parole Board (Scotland) Rules 2022, section 11 states that the board

“may take into account any matter which it considers to be relevant”.

In this context, there is already scope for the board to take account of the individual’s overall actions and behaviour when considering release. Those could, where applicable, include any expression of remorse or contrition.

I will pick up on points made by Ms Mackay and Fulton MacGregor. I can speak with some certainty on this as someone whose bread and butter was compiling parole reports and other assessments, including the old RA1-4 spousal assault risk assessments.

Remorse and empathy are interwoven into the many assessments that social workers, prison officers and psychologists make. However, the difficulty is that about 80 per cent of the prison population has, we believe, a communication difficulty, whether it be neurodivergence, a learning disability or mental health issues. Where we need to take great care is with those who can learn the language of therapy, who can absorb the language of social workers, psychiatrists and psychologists, and who can be very slick at communicating remorse, when what lies underneath it is a whole other matter and different motivations.

Also, to be blunt, I think that it is not clear how the board would assess an individual’s expression of remorse, given the subjective nature of these matters and the difficulty of applying a consistent approach across different cases.

There will always be an argument to be made with regard to how we use our resources now to impact on change. I do not demur from that, but there is also the argument that there is a very strong case to be made for having a victims and witnesses commissioner to uphold and undertake specific statutory functions—those arguments are not mutually exclusive. We should bear in mind that criminal justice agencies are independent from Scottish ministers—and rightly so. After all, we do not want undue ministerial interference in independent decision-making functions. I contend, therefore, that there is a gap that can be filled by a statutory victims and witnesses commissioner who will fulfil statutory functions that cannot be undertaken by anyone else.

I acknowledge the concerns about finance that Ms Dowey has raised consistently throughout stage 1 of the deliberations on the bill, but I contend that, although the recruitment of a victims and witnesses commissioner and the establishment of their office will, of course, incur a financial cost, making such an investment only for the post to be removed a few years later would not seem to be a wise use of resources.

My instinct is to seek consensus where I can, but, on some issues, you are either in or out. When it comes to the debate on the victims and witnesses commissioner, I remain fairly in.

I urge members to oppose all the amendments in the group.

Convener, I had finished my remarks and I did not appreciate that I had a right to reply, but I will take a brief moment to respond to Ms McNeill.

I understand the points about resources. We have to carefully consider every pound that is invested. I hope that members will be cognisant of that as we proceed through stages 2 and 3, because cost is much more of a germane factor in some of the other amendments that we will come on to.

The financial memorandum sets out that approximately £600,000 would be required to set up the commissioner’s office and that there would be approximately £600,000 in recurring costs, which is not an insubstantial amount of money. However, to put that into context, the victim-centred approach fund is £48 million and, over the past five years, the justice portfolio alone has invested £92 million in victim support and related matters. There are ways to reduce costs, although it would be up to the Scottish Parliamentary Corporate Body to do that by sharing services or premises.

Finally, I understand Ms McNeill’s point, but in order to best serve individuals we also need a robust system that is held to account.

I am very mindful of the discussions that I had with Mr Greene early on after my appointment to the position of Cabinet Secretary for Justice and Home Affairs. At the time, he was a very active member of this committee. I say to him and colleagues that we will always do what we can to work together collaboratively. We have done our very best with the 50-odd amendments that Mr Greene lodged at the end of last week. I assure him that we are working at pace. We might not have all the answers today, but I hope that, as we proceed through stage 2, we can demonstrate a willingness to make further improvements to the bill and discuss other work that is in train and beyond.

On group 3, I agree with Mr Greene about the importance of ensuring that victims understand their rights and how the criminal justice system works. I strongly agree, in principle, with his amendment for a victims charter to be the responsibility of the victims and witnesses commissioner. However, I cannot support amendment 234 in its current form, as it would require the victims and witnesses commissioner to prepare and publish the victims charter and to lay it in the Parliament within 12 months of section 1 of the bill coming into force. The recruitment process for the commissioner cannot start until section 1 has come into force, and we anticipate the recruitment process taking between six and nine months. Assuming that a suitable candidate was appointed, the commissioner’s role might have been filled for only a couple of months prior to the deadline in the amendment, which would not allow the commissioner the time needed to develop and produce a charter.

My suggestion to Mr Greene is that he does not press amendment 234 and that we work together ahead of stage 3 on an amendment that provides that the charter should be produced within 12 months of the commissioner taking up their role.

Given that I agree with the principle of the commissioner being responsible for the charter, I urge Jamie Greene not to move amendment 236, which would place a duty on the Scottish ministers to prepare and publish the charter.

I suppose that the bottom line is that we run the risk of traumatising victims who do not wish to engage, notwithstanding that the entire system needs to become more proactive, focused on early engagement and outward reaching.

My fundamental point about the amendments is that they would best be considered as part of a wider piece of work. They focus on very specific points in the criminal justice system and therefore would potentially create lots of opt-ins or opt-outs. The proposed solutions certainly feel somewhat messy.

I will give way in a wee minute—I was interrupted mid-paragraph. I will make a wee bit more progress and then come back to Ms Clark.

The other important aspect is that we do not want the bill to duplicate existing legislative rights and current practices, and therefore to add to the complexity. That is the terrain that we are all in at the moment.

Victims who have chosen to be included in the Crown Office victim information and advice scheme will be proactively advised of the decisions in their case—notwithstanding that much more needs to be done to ensure that more people are informed of their rights and are aware of that scheme. The Crown Office is currently undertaking work to explore the possibility of extending proactive notification of no-action decisions to categories of victims and witnesses beyond those who are currently engaged with the victim information and advice scheme—although it advises that that work is on-going and complex and will carry resource implications. I am happy to engage with members and the Crown Office to get more information on the detail of that work.

I am happy to take Ms Clark’s questions.

I very much recognise the issue that Mr Findlay’s amendment is trying to address. Let me reassure him, and the committee, that the Scottish Government is taking forward work on the criminal-civil interface and I will, in a moment, put on record the breadth of that work. At this point in time, though, I have major concerns about the significant changes that the amendment would make to the running of our courts without any further consultation or engagement.

The effect of amendment 78 is that the courts would have to consider whether a related civil case should be allocated to the same sheriff or judge hearing the criminal case. The civil case might be a family case, such as a child contact case, where domestic abuse is often raised. I very much understand the logic behind the suggestion that the criminal and civil cases be dealt with by the same sheriff, but in practice, amendment 78 could make court programming increasingly complex. If the same sheriff were to be allocated to related criminal and civil proceedings, court programming would need to depend on that sheriff’s availability, which would, almost inevitably, take up more judicial and court time and lead to delays in the case being heard. For all the benefits that such integration might bring, the introduction of further delay is the last thing that families in that situation need.

In addition, the related proceedings could be at different court levels, which could make allocation to the same sheriff or judge problematic. For example, there might be a prosecution in the High Court and a child contact case in the sheriff court. However, as I said, I recognise the issue, which is why the Scottish Government has been progressing improvement work on how the civil and criminal courts interact, particularly in the context of domestic abuse.

We have held two workshops to date—one with justice agencies and another with voluntary sector bodies—and we are actively working on potential reforms. Mr Findlay asked about feedback from those workshops: we are currently identifying and scoping potential change ideas to take forward, which, in broad terms, fall into 10 areas—training, data sharing, court processes and structure, case management by the courts, judicial consideration, support and guidance for parties, child welfare reporters, child contact centres, implementation of the Children (Scotland) Act 2020 and research data and improvement work. I am conscious that integrated domestic abuse courts, or IDACs, were raised in the context of that work and I know from discussions with Scottish Women’s Aid that it would like to see them in Scotland—indeed, as Mr Findlay reiterated, the matter was raised during stage 1.

I can very much see merits in the approach, but the introduction of a major change in our courts would mean a lot of work, discussion and engagement, and the involvement of all stakeholders. We need to ensure that any proposed changes are in fact feasible and could be delivered without any significant adverse effects on court timetabling. As with any significant change of that nature, it would also be fundamental to ensure that both the resourcing of the immediate change and the wider implications had been considered. I respectfully say to the committee that, without any of that work having been carried out, a stage 2 amendment to the bill is not the time to make that change.

The Scottish Government carried out and published research in 2019 to look at the effectiveness of IDACs in other jurisdictions. We are building on that work. I am happy to tell the committee that the Scottish Government will carry out and publish further research on IDACs, which will examine models in other jurisdictions, including the pathfinder pilots in England and Wales. The research will be published in time to support the next Government and Parliament to assess whether legislative and non-legislative changes should be progressed in relation to IDACs.

I think that that is a complete misrepresentation of the position. The committee will know well enough that I am always minded to take opportunities where they arise, and indeed I sometimes incur the wrath of the committee for doing so. I do not want to repeat the debate that we have just had on the victim notification scheme, but I am always keen to make improvements, whether that is with VNS, parole or wherever we can.

With respect, I think that this is of a different magnitude. Although some of the practical reasons might be irritating to politicians who are always looking to practise the art of the possible, we have to give those reasons proper cognisance. I hope that I have demonstrated to the committee and to Mr Findlay that, since he raised the issue with me at stage 1, we have continued to pursue it with great seriousness. I am very interested in that policy area. However, in this instance, I would much rather come back with something at a future point, when all the irksome practicalities have been bottomed out. We are undertaking serious work on the matter.

On Mr Findlay’s request to have further discussions, the only thing that that will cost me is time. That is not a problem, but I want to put it on the record, as I did at stage 1, that this is a substantial area of work and I would not like to make promises that I cannot keep. There are other areas of work, such as in relation to anonymity for the families of deceased children that, with all sincerity, I have looked at including in the bill but that I am not proceeding with. It is not that we are unwilling; it is just that I will not make false promises. However, it is always good to talk.

As the committee has heard, this raft of amendments seeks to prevent a victims and witnesses commissioner from being created. I would strongly oppose such a move; the proposals for the commissioner have been significantly shaped by discussions with victims, victim support organisations and the victims task force, which is co-chaired by me and the Lord Advocate, and many victims and victim support organisations have fought very hard for this commitment from the Government.

We know from victims, survivors and victim support organisations that victims often feel unheard and cannot access information, despite the existing landscape of organisations that advocate for their rights and interests, and that they are supportive of the establishment of a commissioner. The commissioner will monitor criminal justice agencies’ compliance with their standards on trauma-informed practice in order to provide independent scrutiny and accountability.

Under section 16 of the bill, the commissioner will have to produce and publish an annual report on their functions, which must include any recommendations, and the bill specifically provides that those recommendations can cover trauma-informed practice, too. By monitoring how victims’ rights are being upheld, the commissioner will have an important role in holding criminal justice agencies to account, which is an area that we will come on to in the fifth group of amendments.

No existing public body or organisation, including the Scottish ministers, has the statutory power to hold criminal justice agencies to account in relation to how the rights of victims and witnesses are being met or upheld, nor can that role be given to a third sector organisation. The victims and witnesses commissioner will therefore be able to provide that function and the mechanism of accountability that is lacking from the criminal justice system. They will also have statutory powers to monitor criminal justice agencies’ compliance with the standards of service and the “Victims’ Code for Scotland”, and will have a role in establishing a victims charter, which we will come to in the next group of amendments.

I respectfully oppose Ms Dowey’s amendment 235, which seeks to insert a sunset clause into the role of the victims and witnesses commissioner, such that the role would expire within five years of the commencement of section 1. The commissioner will champion the rights of victims and witnesses and provide them with an independent voice—why would anyone not want that for victims, survivors and witnesses, or want its role to be for a temporary period? I remain convinced that the role is needed and should be permanent; it is not a role to be set up, only to potentially expire within a few years. I therefore urge members to oppose amendment 235.

In relation to amendment 106, committee members might recall discussions at stage 1 on the need to ensure that the victims and witnesses commissioner has sufficient powers to take action, should criminal justice agencies not comply with a request for information. The amendment provides for the creation of enforcement powers in relation to requests for information.

I hope that this does not make me sound too churlish, but the reason for my not supporting amendment 106 is, quite simply, that I support my own amendment 135, which makes clear the enforcement action that the victims and witnesses commissioner may take if a criminal justice agency does not supply information that has been requested. It provides parity with enforcement powers held by other commissioners in Scotland, including the Scottish Biometrics Commissioner and the Patient Safety Commissioner for Scotland, and provides certainty for criminal justice agencies on what action may be taken against them. Given that amendment 135 sets out enforcement powers on the face of the bill, the regulation-making powers provided by amendment 106 are therefore not required, and I urge Liam Kerr not to move the amendment and to support amendment 135 instead.

I want to encourage the commissioner to work with criminal justice agencies and to foster co-operative working relationships with them. As a result, amendment 136 provides the commissioner with an obligation to send a copy of the draft annual report to each of the criminal justice agencies and any victim support organisation named in the report.

Amendment 137 is a consequential amendment that is related to the early sharing of those draft reports. Sharing reports in advance of publication already happens with other public bodies and is considered to be good practice.

Amendment 138 empowers the commissioner to “publish” additional reports, and amendment 139 provides that such reports must be laid in Parliament and sent to the criminal justice agencies.

Mr Kerr’s amendment 110 would provide for regulation-making powers in relation to enforcing co-operation from criminal justice agencies. Regulation-making powers in relation to enforcement might seem heavy-handed for setting the tone of how the commissioner would wish to work with the criminal justice agencies; nonetheless, I would be more than prepared to discuss that with Mr Kerr before stage 3. If his amendment is agreed to, I would want to engage with the Crown Office to ensure that no unintended consequences arise from how it is interpreted, and I would reserve the right to return to it at stage 3.

I urge the committee to support the amendments in my name and oppose the rest of the amendments in the group.