Chamber and committees

All the terrorists and sex offenders would burn to death, but everyone else would get out. It is such an odd scenario, and the explanation does not make sense. The emergency power is to be used in a life-threatening situation, and I think that we probably agree that it is sensible for the Government to have that power—

When the Government lodged its amendments in this group, we were minded to support them, because they seemed to improve the legislation and provide further clarification. However, it cannot go unnoticed that amendments 21 and 23 to 27 are opposed by the organisations that work with victims day in and day out. That is notable.

I suggest that the Government should do something unusual by not moving the amendments if there are problems with them and instead taking them back to the drawing board. We have been asked throughout the two weeks of the stage 2 process not to move amendments that are, on the face of it, trying to do the right thing but might be problematic. This is an opportunity for the Government to do exactly the same.

Although an explanation has been given quite late in the day, it is of notable concern that those to whom this section of the bill will apply have problems with the amendments as drafted. One approach would be to agree to the amendments and to fix this at stage 3, but it seems to me that it would be better for the Government to revisit the issue after further consultation.

I do not doubt that, and I do not doubt the cabinet secretary’s commitment to consultation and engagement ahead of stage 3, but we have to decide whether to vote for the amendments here and now. It would be easier if we did not have to do that, given that the position of those organisations is clearly contrary to that of Government. It would be better if the committee were not put in that position. Nonetheless, we will support the amendments because of the promise, which is now on record, that the Government will look at them again ahead of stage 3.

The problem is that it is not clear cut. The pandemic was an emergency, which is why we passed emergency legislation. It is interesting that the cabinet secretary said that it is not a power that she would ever want to use. The problem that I have, irrespective of your views, is that previous cabinet secretaries have used the power to release prisoners for emergency reasons. When that power was used, we saw the consequences. That is what I will come on to next.

Under the coronavirus legislation, the Government—not this cabinet secretary, but this Government—did use that power to release prisoners. The Scottish Government released 348 prisoners in early May 2020 under what was then emergency legislation. Of the 348 prisoners who were released under that emergency legislation—we all understood what an emergency was in that scenario—142 went on to reoffend within six months of release. That is perhaps why victims organisations have such an issue with it.

What is worse is that none of the victims involved in any of those cases was informed of the emergency release. The use of that power was debatable in that scenario, and the effect that it had on the wider community was debatable. Therefore, it is all very well saying that it is just a catch-all emergency power that we hope we will never have to use, but the Government has used it and might use it again.

I believe that the power was perfectly suitable under the Coronavirus (Recovery and Reform) (Scotland) Act 2022, which I understand is limited to run until 2025, but, if the Government wants that power for longer, it can come back to Parliament and ask for that or make it permanent if it wishes. This bill is not the place to put in such a power, but, if the Government insists on having it, the very least that it can do is be forthcoming to Parliament and make sure that there is some form of scrutiny. At the moment, there is none; it simply does not exist.

For the protection of future Parliaments—whether I am in them or not is irrelevant—if there is to be such a sweeping power, knowing the effect on the community and on victims of releasing hundreds or potentially more prisoners, the very least that the Government can do is ensure that there is some scrutiny, debate and, ideally, a vote. In this case, that would be done through the affirmative procedure, as the Government already details. That is why my amendment 93 would remove the rest of proposed new section 3D of the 1993 act. I also support Katy Clark’s amendment 38, which I note from the groupings document Collette Stevenson supports, too.

The wider point, though, is that what is notably absent is any duty to consult a victim about the release of an offender. As you rightly said, the VNS is really the only mechanism. I know that the VNS is subject to review, but we feel that we have an opportunity—via future amendments if not the ones in this group—to put something about victims’ consent in the bill. It is not a blanket proposal—every victim will deal with it differently.

This is all about release planning, and clearly our intention is to ensure the on-going safety of the victim after the offender’s release. We have widely debated that issue, but there are also advantages to the offender in knowing the parameters around the conditions for their release. It might even ensure that the offender does not inadvertently breach licence conditions, which we have heard is sometimes the case; indeed, we saw examples of that in the hearings that we attended. There is a significant advantage to offenders, as well as victims, in the victim being involved in the process. At the moment, it is a bit woolly around the victim’s involvement. I hope that the Government can find a mechanism to ensure that there is a duty to consult.

I am keen to explore that further. Is it being suggested that the technical problem with Liam McArthur’s amendments means that information from the complainer that relates to decision making would be made public or spoken out loud in the remand court? Is there no technical solution to that? Clearly, the judge could have all the relevant information, but they would not need to share that with the gallery or, indeed, anyone else who was in the room.

That information is surely quite important to the decision-making process. The ability to understand whether there is a public safety issue is very much dependent on direct information from a victim or someone representing them, which, in this case, would be a relevant person.

I should have indicated earlier that I wanted to speak on this group.

I know that members have to make decisions, so it may be helpful for them to know that Conservatives would support all the amendments in the group that have been discussed so far, if they are moved, with the exception of amendments 28 and 29, which Katy Clark has indicated that she may not move. We were keen to understand the cause and the possible effects of those amendments, but that has been made clear through Ms Clark’s comments.

I would also have supported Colette Stevenson’s amendment 52. I tried to submit a similarly worded amendment, but the legislation team explained that a similar amendment had already been lodged, which meant that I was unable to do so. For that reason, as members can see in their papers, I added my support to amendment 52.

Ms Stevenson has reflected on amendment 52 and indicated that she will not move it. I wanted to submit a similar amendment, because the issue is relevant and pertinent. I am sure that the cabinet secretary will have some comments to make about the issue, which is about considering the safety of victims in decisions about bail. The amendment would provide for information that is

“submitted by or obtained from”

victims to be included during the consideration of bail, with specific regard to any vulnerabilities particular to that victim.

Decisions on the bill will, of course, affect not only the offender—the accused, I should say—but the complainer, as Collette Stevenson’s amendment 52 recognises. That is why I welcomed the amendment. For that reason, I will move the amendment when the time comes.

I will respond to that intervention before bringing in Pauline McNeill, if she still wishes to intervene.

I agree with everything that you just said. I think that there is an enhanced role for electronic monitoring, especially given that, if the bill passes—as it inevitably will—people out there will be looking for the quid pro quo. Part of that might be about the Government utilising lots of different tools at its disposal and equipping our courts with as much as possible to improve outcomes for victims and those who are nervous about offenders. There is a conversation to be had about that, but that is not what the section in question does. It has to be removed, not fixed, because of its primary purpose: it is all about the time spent on electronic monitoring in proportion to the final sentence. It even goes so far as dictating what that should be.

I agree—I would like to see some Government amendments at the next stage that address how electronic monitoring can be better used in remand and bail decisions. However, none of that will fit anywhere from the bottom of page 3 to the top half of page 5 of the bill; the only way is to remove the section and put something else in. I say to Ms Stevenson that the section cannot be changed to do what she wants it to do in any meaningful way. For that very reason, I suggest that we take out the section, because it is about an entirely different matter. It is not about the enhanced use of electronic monitoring.

I find amendment 1 very helpful. It is not a huge surprise that the Government has pushed back on it. In my experience, from working on many bills, any reporting requirements that members propose to add are generally rejected by the Government, although such requirements sometimes appear. I hope that the member will move amendment 1 or at least bring it back at stage 3. It would not place an onerous task on the Government. The timescale of one year after the legislation is introduced is on the tight side, but that could easily be amended at stage 3 to two or three years.

I do not buy the rebuttal that post-legislative scrutiny is the answer to the issue, because that generally takes a number of years and it is not always done well, as committees are extremely busy.

Amendment 1 would require the Government to come back to Parliament with a report for the reason that Katy Clark rightly mentioned, which is the very substantial worry that the financial memorandum has massively understated the costs to social work. As a committee, we have heard numerous pieces of evidence about social work being under pressure. The amendment would be a welcome addition to the bill, and I hope that the member will press it.

Thank you. I forgot to mention the lack of data that is available to us throughout the process, and you have just prompted my memory. That is a real issue. We should be making legislation that is driven by good data, by which I mean relevant qualitative and quantitative data. The biggest problem that we had was understanding what the prison population looks like. Are people there for too long? What types of crime profiles are people in prison for?

If a pattern emerged—for example, that people who had committed quite low-level crimes had been remanded—there would be valid questions to ask of the judiciary about their decision making using the current bail test. However, we did not have such evidence presented to us, and there certainly were no patterns emerging, other than that we know that there are delays to eventual trials. There is a lack of positive information to show that the current rules do not work and are leading to a high remand population, which is why we are so nervous about the change to the bail test. We are not opposing it for the sake of opposing it.