Seòmar agus comataidhean

I am happy to go back and check that point, but my understanding—particularly after yesterday’s debate about the trauma-informed justice skills framework that is to apply to all actors in the justice system—is that we need to give victims meaningful information. Although the information needs to address the facts of the matter on whether someone has been remanded or bailed, I do not think that it is unreasonable to expect people to be given some context about what was said in open court, bearing in mind that it might not be appropriate or desirable for the complainer to be present in court. The route to provide that information would be via the Crown Office. I am happy to have further discussions on that point.

On Mr Findlay’s other point in relation to my amendment 7, I gave the reasons for refusal and will repeat them for the record—I apologise if people recall hearing them. Amendment 7 removes the requirements for the court, when remanding an accused person in custody, to enter in the record of proceedings, first, where it relies on the failure-to-appear ground in section 23C(1)(a) of the 1995 act as the sole basis for remand and the reasons why it considers that that is necessary and, secondly, the reasons why it considers that electronic monitoring of bail is not appropriate or an adequate safeguard.

Amendment 7 agreed to.

Amendment 35 not moved.

Amendment 66 moved—[Rona Mackay]—and agreed to.

Amendment 36 not moved.

Section 4, as amended, agreed to.

After section 4

Over 2010-11 to 2019-20.

I will speak to amendment 37, in the name of Katy Clark, first. Amendment 37 inserts a new section after section 4 that would impose an annual duty on Scottish ministers to publish a report on women who have been refused bail. A non-exhaustive list of the information that the report must contain is set out in subsection (2), from (a) to (g), of the proposed new section.

I recognise that the amendment is well intentioned, and I agree that there is benefit in a requirement for the Scottish ministers to publish a report in relation to women on remand. However, I have some concerns about the amendment as it is drafted.

Some of the information that is covered by amendment 37 is already routinely published as part of the Scottish Government’s official statistics release. In particular, the following data is already published: the nature of the offences that women who are refused bail have been charged with, the average age of women who are refused bail and the number of women who transition from the remand population to the sentenced population.

Conversely, some of the data that is listed in amendment 37 would be either difficult or, in some instances, impossible to produce. Accordingly, it may impose onerous requirements on the Scottish Courts and Tribunals Service and, potentially, the Crown Office and Procurator Fiscal Service, to compile the data that is sought.

As such, I ask Katy Clark not to press amendment 37, and I will undertake to work with her to see whether we can return at stage 3 with a workable reporting requirement that explores the characteristics of the remand population—including by gender—in a meaningful and informative way but that does not place unduly onerous burdens on the Scottish Courts and Tribunals Service and others. I am conscious of the concerns that have already been expressed throughout stage 1 about the capacity demands on operational justice agencies, but I will seek to strike the right balance.

I now turn to amendment 8, in my name. The committee’s stage 1 report expressed concern about a lack of information about the circumstances in which remand decisions are made. Amendment 8 responds to that concern by imposing a statutory duty on Scottish ministers to

“publish a report on bail and remand.”

The report will be required to contain certain information broken down by year and covering the first three years during which the new bail test under section 2 is in operation. The report must contain certain specified information in relation to bail and remand decision making. In relation to remand, that includes information such as

“the average daily remand population”

and

“the number of individuals who entered the remand population by reference to ...

(i) the offence (or type of offence) in respect of which the individual was remanded in custody,

(ii) the individual’s gender,

(iii) the local authority area in which the individual lived immediately before being remanded in custody”.

In relation to bail, that includes information such as

“the number of bail orders made by reference to the offence (or type of offence) in respect of which the individual was granted bail”

and data related to

“bail-related offences, and ... other offences ... committed while on bail”.

Amendment 8 sets out the full list of information that must be included in the report, as well as, importantly,

“any other information that the Scottish Ministers consider appropriate”.

I trust that that will be welcomed by the committee, and I ask members to support amendment 8, in my name.

My only other remark on Ms McNeill’s amendment 53 is that I do not think that there would be any practical benefit from it, and I say that with respect.

Katy Clark’s amendment 1 seeks to put in place a requirement for the Scottish ministers to report to Parliament on the operation of section 1. I recognise that the enhanced role of justice social work carries resource implications as set out in the financial memorandum. We have been clear during stage 1 that the Scottish Government will continue to work with partners during implementation planning to review the resourcing requirements and timescales for commencement.

Members will be well aware that there are real challenges in relation to budgets, which is likely to continue. That means that difficult decisions will possibly need to be made. Phased implementation of legislation can be a way of flexibly managing the resource implication of any bill. It is also worth highlighting that Parliament—and, indeed, this committee—already has the power to carry out post-legislative scrutiny of any acts of Parliament.

I ask members to reject the amendments in the group.

Before I go through my speaking note and make the remarks that I need to put on the public record, I will respond to Pauline McNeill’s point about the committee’s post-legislative scrutiny of the Domestic Abuse (Scotland) Act 2018. I put on the record that I have obviously received the work that the committee has done in that regard, and I very much welcome it. I will seek to respond once I have had the opportunity to discuss the detail with our justice partners. However, my intention is to respond to the committee as much as I can prior to stage 3, because I think that that would be helpful. Pauline McNeill also asked why we are removing section 23D now. This is taking place in the broader context of our work with partners on remand issues.

I will now speak directly about Pauline McNeill’s amendment 65, which seeks to remove completely section 3 of the bill. As we know, section 3 repeals section 23D of the Criminal Procedure (Scotland) Act 1995. The amendment would mean that the current restriction on bail in section 23D would continue to apply alongside the newly proposed bail test that is set out in section 2 of the bill. I understand that the amendment has been lodged because of concerns that have been expressed that the repeal of section 23D could put victims of violent crime, domestic abuse and sexual offences at greater risk of harm. It is entirely right to ask questions about the impact of the repeal, and I want to address them directly.

First and foremost, I want to reassure all victims of crime and those who tirelessly represent their interests that I am clear that remand will continue to play an essential role in protecting victims and the wider public. The bill does not change that. Public safety and victim safety are at the heart of the new bail test. As I have said, there are, of course, occasions when remand is absolutely necessary in order to protect victims from harm, particularly in cases of sexual or domestic abuse. The new bail test will ensure that that can happen.

The bill proposes to repeal section 23D for one simple reason, which is to ensure that the same core bail test applies in all cases. In its place, the new bail test explicitly highlights for the first time the importance of ensuring the safety of victims from harm. The bill not only does that but defines safety from “harm” as safety from both “physical or psychological harm” in recognition of the harm that is caused by threatening or coercive behaviour, which is an insidious feature of domestic abuse. That means that, when the court considers that an accused person poses a risk to public safety, including the safety of the victim—the type of person to whom section 23 currently applies—remand can be used. In fact, the proposed changes to the new bail test emphasise that.

I note that, as Pauline McNeill mentioned, there is strong support for the simplification measure among those who use bail law. It has been said that repealing section 23D gives the court improved, rather than reduced, discretion to fully consider the facts and circumstances of each case, including the risk of harm that is posed to victims.

For all those reasons, I ask Pauline McNeill not to press amendment 65. If she does, I respectfully request that committee members vote against it.

I will speak to amendments 28 and 29 and then to other amendments in the group.

Although concerns have been expressed about resourcing the role of justice social work, the bill requires only that the courts give justice social work the opportunity to provide information relevant to the question of bail; it does not place a duty on justice social work to do so. We deliberately framed the provisions in that way to ensure that local authorities will always have the opportunity to provide information but that it will be for them to decide whether to do so in any individual case.

That is why I said that I was happy to discuss the matter further with Liam MacArthur ahead of stage 3. However, we must be very mindful of unintended consequence in that area, for the reasons that I have laid out.

It is also important to stress that the prosecutor, who acts independently in the public interest, is best placed to provide complainer safety information to the court, which would be presented as part of their submission on bail.

I will address some of the resource issues before I move on to the amendments in the group that were lodged by Collette Stevenson.

As I have already said to committee, I understand the concerns about the potential financial impacts of the bill. Those are laid out in the financial memorandum, but, to offer further reassurance to committee, I note that we have worked with Social Work Scotland, which is supportive of our approach in and around justice social work and bail. That also applies to the Convention of Scottish Local Authorities, the Scottish Courts and Tribunals Service and others. We engaged with those organisations as part of our work to establish the estimates in the financial memorandum. I stress that we will continue to work with those organisations on the implementation plans for the bill. As we all know, Parliament agrees to the Scottish budget annually.

Collette Stevenson’s amendments 52 and 54 would prescribe certain information relating to the complainer that justice social work must put before the court when taking up the opportunity to provide information that is relevant to the question of bail. I understand the intention behind the amendments. However, they would have very considerable resource implications, as justice social work is not usually involved in providing information to the court about complainers. There has been no consultation on creating such an expanded role for justice social work, and we have already heard concerns about resourcing.

That aside, it is unrealistic for justice social work to provide information of that kind in the timescales prescribed by the bail process, particularly in custody cases, because justice social work may not have any pre-existing relationship with the complainer. We also know from the experience of specialist domestic abuse advocacy services such as the advocacy, support, safety, information and services together—ASSIST—project that, in the wake of the trauma and confusion of an incident, complainers are not always physically or emotionally safe enough at that stage of the process to engage.

An amendment of the bill is not necessary to broaden the role of justice social work, because section 1 does not prescribe the type of information that justice social work must provide on the question of bail. Given those concerns, it is something that could be for consideration in the medium term, and I would be happy to discuss further what, if anything, could be planned for outwith the bill process.

Pauline McNeill’s amendment 53 seeks to provide that, where justice social work intends to provide information to the court on the question of bail, it must do so within timescales determined by the sheriff or judge. As I explained in relation to amendment 49, any delay in justice social work providing information would not change the timing of the bail decision.

There are a number of issues to clarify and put on the record, and I hope that colleagues will bear with me.

It is apparent that Ms Stevenson’s amendment, which is to be pressed not by her but by Mr Greene, would remove section 5 from the bill in its entirety. I make it clear to Ms Stevenson and others that section 5 is not about the existence of electronic monitoring of bail—that already exists. There are important debates and factors to consider further in relation to how the use of electronic monitoring of bail could be enhanced. It exists now in 21 local authority areas, and it is coupled with bail supervision, which exists in 30 areas. That is a separate matter, and we need to be clear about that.

All that we are seeking to do is give the court the option to acknowledge good behaviour by a person who is being electronically monitored. Although a restriction of liberty is not the same thing as a deprivation of liberty, it is nonetheless a restriction. If someone is sentenced, it would not be unreasonable for the court to have the option to take their behaviour into account or not to do so, as it sees fit.

Our approach has been consulted on; I take exception to the suggestion that we have sneaked it in.

In a moment, Mr Findlay.

For the record, before I make some more formal comments, I refer members back to the comments that I made when we debated the amendments in group 3. Remand remains an essential component and option to protect victims who are at risk of violence—including domestic violence—whether physical or coercive.

I will make more specific comments about resourcing issues in a wee while, but the heart of the matter here is whether justice social work has a relevant contribution to make or relevant information to pass on. The amendments that we are discussing now are about the practical impact of those contributions rather than about resourcing. Of course, when justice social work has a valuable contribution to make, it should be enabled and empowered to do so.

Consequently, amendments 28 and 29 are, in my view, unnecessary, although I can understand why they have been lodged. If a way can be found, ahead of stage 3, to reframe the ability of justice social work to provide the court with information, I will be happy to consider that. However, I think that the bill currently delivers what we want in this area.

Pauline McNeill’s amendment 49 seeks to remove the requirement for the court to provide an opportunity for justice social work to provide information that is relevant to the question of bail. It has been suggested that decisions on whether to admit an accused to bail could be delayed by section 1, but the approach in the bill will not result in unnecessary or longer periods of remand, because, under existing bail law that will continue to operate, the court has only until the end of the day after the accused person’s first appearance to make a formal bail decision.