Chamber and committees

Ms McNeill makes a good point. My understanding is that it is already an offence to obtain a GRC fraudulently, so a bar has already been set in the eyes of the law and that bar would remain. Perhaps the cabinet secretary will address that, assisted by the team around her. The matter might be clarified through further guidance after the bill passes or, indeed, through further clarification of the amendment itself. As we move to stage 3, I would be very happy to amend the bill further, should amendment 133 be agreed to, in order to clarify the matter.

Pauline McNeill is absolutely right: court cases are all individual. We should be as clear as possible. I am happy to work with the Government and, indeed, any other member, if that would help.

I make it clear that the amendment does not alter in any way the general principles of the bill or the process for obtaining a GRC, and it should not act as a deterrent to anyone who wants to go about that process for good reason. It does not exclude anyone from obtaining a certificate and it does not set any additional preconditions or requirements for obtaining one.

As the committee will know, I also lodged amendment 134—I withdrew it ahead of the deadline—which went into more detail on the types of offences where an aggravator would be suitable, such as offences under the Sexual Offences Act 2003 or human trafficking, abusive behaviour, sexual harm and domestic abuse. I felt that there was some merit in that approach, but I understand that there are some technical difficulties, which the cabinet secretary might want to explain to me. I am happy to work with the Government if the committee feels that the provision could be strengthened to become more specific or if the general approach is good enough in the eyes of the law.

Simple aggravators are commonly used in other pieces of legislation, such as the Domestic Abuse (Scotland) Act 2018. Members may be aware that, more recently, the Fireworks and Pyrotechnic Articles (Scotland) Act 2022, which went through the Criminal Justice Committee, introduced an aggravator for offences of assault against emergency service workers. There is some precedent.

The whole point of an aggravator is to act as a deterrent, which is the intention of my amendment. I ask the committee to support amendment 133. It will introduce a much-needed counterbalance to address some of the concerns about the new process.

I move amendment 133.

I am far less titled than Mr McGrigor is, but I will do my best.

Cabinet secretary, I believe that you stated that you will support amendment 37. It says:

“For the avoidance of doubt, nothing in this Act”

and so on. It has a very narrow bandwidth. You argued against amendment 111 by saying that amendments that begin

“For the avoidance of doubt”

are completely meaningless, and you asked the member not to move that amendment. Now, for entirely the opposite reason, you are asking members to support amendment 37, which is worded very similarly and therefore should have the same meaningless effect.

I think that what members are saying, by using a series of different amendments, is that the purpose of the bill might not be the same as its effect. We will not know what effect the bill has until after it has been enacted. I believe that there might be a compromise to be had in the catch-all reporting requirement that the Government has indicated that it would be willing to consider. I wonder whether some of the amendments about the interaction between the bill and other legislation might be best dealt with there. If the Government is not willing to support them all, perhaps Pam Duncan-Glancy’s amendment 37, which is very limited and narrow in scope, might provide room for constructive work with members ahead of stage 3.

Would the effect of amendment 76, should it be agreed to, be that all healthcare professionals, in any capacity, would have to disclose their trans identity to their patients and to their employer at every opportunity?

That touches nicely on the point that Pam Gosal raised about patients’ rights and requests in healthcare environments. A valid scenario has been raised that we perhaps had not thought about. However, is not the problem the lack of consistency in guidance and understanding of the rules? Does Claire Baker agree that it would be very beneficial if the Government were to commit to producing and publishing comprehensive guidance for public services—and specifically not just private employers—on what can and cannot be done in the circumstances in which decisions can be made? I think that the lack of consistency is causing issues for some folk.

Yes; I presume that the cabinet secretary is speaking about proposed new subsection 22B(1). I am not a legal drafter; the amendment was prepared with the kind help of the parliamentary team at very short notice, given our tight deadlines. I prefer to move the amendment and ask committee members to vote on it. Of course, there will be ample opportunity to tidy it up ahead of stage 3, and I am happy to work with the Government on that.

I thank the working group for its work on a difficult and sensitive issue, not least for members who represent communities in the west of Scotland.

It is unclear from the letter what will happen next around some of the proposals. I have concerns about the suggestion that decisions will be taken at microlocal level. I also have concerns about whether local authorities will have new or specific powers in relation to marches and processions, and about what the consequences of that might be. We could have quite disparate outcomes, with certain types of marches allowed in one part of the country but not in another, for example. That would leave matters open to the vagaries of how different councils operate, depending on whether, for example, they are more member led or official led. We also need to bear in mind that councils come in different shapes, sizes and political colours.

I would like to get a bit more information, as it is a little unclear from the cabinet secretary’s comments whether he supports the proposal to give more powers to local authorities. He only says:

“I am keen to explore what, if anything, is possible and desirable”

in relation to the working group’s conclusion on that.

The cabinet secretary uses the phrase

“improvements could be best handled by local partners”,

but the letter does not state who those local partners would be and what statutory roles they would play in making decisions.

Some people are disappointed that we will not have a Northern Ireland-style parades commission. I understand that the number of parades that take place is much lower in Scotland than it is in Ireland, but the consequences are often not dissimilar.

I ask that we are kept up to date on the issue. I would find it really helpful to get from the cabinet secretary any information on the Government’s direction of travel.

Unfortunately, Covid taught us that many care homes felt like prisons for many of their patients.

We are talking about pre-budget scrutiny and, in your opening comments, you mentioned not just prisons—although we have focused our comments on them—but the wider justice sector. All areas of the justice sector face the same potential outcomes; that applies to community justice, the police, the Crown Office and other stakeholders, who are all cogs in the wheel.

If we end up with the Government finding extra money to give to some of those services, on the back of evidence that has been heard in this committee, it is likely that much of that will simply get sucked up in pay rises, because pay is the largest source of outgoings for many such organisations. Do you have any concern that, even if we are not looking at flat cash and there are some additional year-on-year rises in their budgets, all of that will indeed be sucked up through negotiations with workers, or to avoid industrial action—which there is potential for across the board—and none of the good things that any of them wants to do will happen, even given such an increase in the budget? What is your advice to Government about that?

Do you think that the Government would do that even if a better service was being run more cheaply?

Would you be prepared to go on the record with an estimate, today?

In its evidence, the Scottish Prison Service said that a flat cash settlement would mean that it would need to revert to near-Covid-type lockdown scenarios in prison, and pretty much get rid of all the good stuff—rehabilitation and the involvement of third parties including the third sector—that ensures that people come out of prison better than they were when they went in. It said all that would cease to exist. Is that a concern?