Chamber and committees

I thank the cabinet secretary for the update and want to pick up on two points on the second page of the letter.

The first is about the Scottish Government distress brief intervention programme. That is new to me, and it sounds like a positive and helpful thing. It seems to me that that can be instigated only if a person presents via a 999 emergency call or some other call to the emergency services and that the issue is dealt with at the call handling stage. When the caller presents, or does so on behalf of someone else, a decision is made in the call centre about whether that call will be directed to Police Scotland or to the distress brief intervention programme, but it is unclear where that is.

Does the call go to Police Scotland and get flagged as a potential DBI, meaning that an officer does not attend? The letter seems to imply that it is one or the other. I am a bit unclear about that, so I would find it helpful to understand the logistics of how the call handling works and where the call ends up in relation to how someone is attended to. I had never heard of the intervention, and I do not know anyone who has. It is live in 20 health and social care partnerships, and it would be helpful to know which ones it is live in.

Progress is obviously being made in rolling the intervention out, but how is it working in practice, and how do people access the service? It sounds like a very good service, with two weeks of very direct intervention, possibly one to one, with somebody who needs that help. I know some constituents who would benefit from that immediately, but I have no idea how people access the service.

Secondly, there is a comment that I wish to question. The cabinet secretary’s letter says:

“Each Health Board is providing access to a mental health clinician, accessible to police officers, 24 hours a day, 7 days a week for those who require urgent mental health assessment or urgent referral to local mental health services.”

My conversations with officers and their representatives indicate that that is not the case—it is absolutely not a 24/7 service. I am intrigued to know what that access to a mental health clinician looks or feels like on the ground. Does it mean just a phone number, or will someone attend in situ? Does it refer to somewhere that the police will take someone to? Is it a physical environment? It is certainly not a 24/7 environment. If that were the case, the police would not be responding to such calls and spending so much time dealing with people with mental health difficulties. I am not entirely convinced that that statement holds true in the real world, and I think we should do a bit of work to investigate that comment further.

Yes. The online and technology industry is growing in Scotland, so there will be a number of people in senior management positions who ordinarily reside—or, to quote the bill, are “habitually resident”—in Scotland, and the question is whether they would be prosecuted under Scots law or English and Welsh law if the primary factor is where the person is resident, as opposed to where the company is registered or where the offence takes place. I just seek a bit of clarification on that. I know that the scenarios are hypothetical and we hope that offences will be few and far between, but it was not entirely clear from the LCM what the situation would look like.

What analysis has the Scottish Government done of the scale of companies that might fall into that category? Do we know how many large social media companies or tech companies to which the provisions are relevant have corporate headquarters in Scotland? Are most of them based elsewhere?

That is very helpful.

I have a couple of points. First, following on from Russell Findlay’s valid question of the Government, does the Fireworks and Pyrotechnic Articles (Scotland) Act 2022 give any new powers? The understanding was that it was mostly in relation to the ability to stop and search, not necessarily around possession, which in certain environments, as Russell Findlay said, is already illegal.

It is a bit unclear what will happen with the act versus existing legislation, and what training and communication Police Scotland is involved with for officers on the ground at big events—I talking about not only football events, but also other sporting or music events. In fact, I was watching some footage of a music festival, which will remain unnamed, where lots of people in the audience were flying flares with smoke coming out of them, making a complete mockery of the fact that this committee spent a year working on a bill to stop that happening. Needless to say, they were not rioting—they were all having a good time. That is by the by, however.

I am grateful for the Minister for Victims and Community Safety’s response. In part, she was responding to some specific questions that I posed in the session on 3 May, and I want to query two things in the letter. The first is in relation to someone who is stopped under suspicion of committing an offence under the new act. The letter states that if a prohibited item is found,

“it will be seized and retained”,

which makes complete sense. The letter goes on to state:

“The individual will most likely be taken into police custody”,

which is intriguing, as that is not the evidence that we took from Police Scotland. If that is the case, I would find it interesting.

The letter also says that it is the case that,

“if released without charge under ‘investigative liberation’, an individual may be given certain rules to follow (such as telling the person not to go to a certain place or speak to certain people) for a set period of time.”

I am quite intrigued by that. After somebody has been liberated, who has not been charged—the letter clearly states, “without charge”—can they be given specific instruction not to attend certain places or meet certain groups of people? In a scenario where someone has been stopped outside a football game, an item has been removed, and the person has then been released without charge—perhaps even on the spot but pending further investigation—do the police have a power to remove that person or to say to that person that they must remove themselves from the vicinity of the stadium? It is a bit unclear how that would work in practice. The letter seems to fall back on the admissibility of that individual being the responsibility of the event organiser or the venue.

The second query is about the lifetime ban orders, which is a point that I raised. It seems that a loophole still exists here. My original question was whether lifetime ban orders could be an effective additional tool when somebody is stopped and found to be in possession of illegal articles under the Fireworks and Pyrotechnic Articles (Scotland) Act 2022. It seems to be that the person can be given a football banning order, which can be quite lengthy, only if they are also in breach of the Police, Public Order and Criminal Justice (Scotland) Act 2006, which specifically says that they must be

“engaging in violence or disorder”.

However, being caught with fireworks and flares at a football match does not necessarily mean “violence and disorder” if the person has not used them, for example.

The threshold for the introduction of FBOs is extremely high at the moment, so it seems to me that the 2022 act will have to be altered to reduce it. Will the Government consider doing so? For example, someone could be a repeat offender—turning up with flares, maybe even having been barred from the venue or stadium—but they would not be given a lifetime banning order in the current scenario, so there is certainly room for improvement. Could the Government respond on that point?

But this is not about Northern Ireland.

Okay. I say respectfully that the question was about one of the three pillars that you laid out regarding your rationale for opposition to granting consent. One of those pillars was to do with the concept of whether immunity should be granted in certain scenarios, which is a philosophical question. Does the cabinet secretary not agree that that might be a useful tool for the new commission to have in the box to maintain on-going peace? It is quite a well-established protocol; the Good Friday agreement itself was, in effect, one great amnesty for people on many sides of the troubles. Therefore, it would be a continuation of that. I am still struggling to understand what the political opposition to it is.

Does the cabinet secretary believe that it would create any problems or any opportunities if the legislation were to go ahead without Scotland participating in it, as Scotland has a separate legal system? What risk analysis has been done of the bill passing in Westminster without Scotland participating in it?

Could that undermine any policy objectives of the legislation? Would it undermine the work of the independent commission? Indeed, could it render much of the legislation useless, for example if someone who was an accused person was residing in Scotland and would therefore be prosecuted in Scotland, rather than anywhere else in the United Kingdom? Has the Government done any analysis of what that potential outcome or scenario might look like?

I merely say that I am intrigued to see how we will make a half-hour debate out of this subject next week. I look forward to hearing the minister’s comments.

I was referring to the letter from the cabinet secretary, at the third substantive paragraph on page 3 in our papers. It states:

“Each Health Board is providing access to a mental health clinician, accessible to police officers, 24 hours a day, 7 days a week”.

I presume that that means that each board is currently providing access—that is what the letter implies. That apparent 24/7 provision is a surprise to me. The feedback is very much that that is not the case out of hours, that police officers must deal with mental health assessments and that there is not 24/7 access to mental health clinicians for every officer. I find it difficult to believe the claim that every health board is currently providing a 24/7 mental health clinician service. If it is true, that is welcome, but we could perhaps benefit from more detail on that.

I want to comment on that second level. Obviously, the SPF has seen the draft—I presume that it is a draft—of the constitution that has been published. It has made specific comments as to the content of a number of paragraphs—3, 9, 37, 42, 43, 44 and 45. To go back to my original question, will there be scope for the constitution to be amended prior to being finalised?