Scottish Parliament, 21 June 2023

465 contributions from 70 members. The official report.

Rural Affairs, Land Reform and Islands

Liam McArthur (Liberal Democrat, Orkney Islands)

Good afternoon, colleagues. The first item of business is portfolio question time, and the first portfolio is rural affairs, land reform and islands. I invite members who wish to ask a supplementary question to press their request-to-speak button during the relevant question.

Question 1 has been withdrawn.

Agriculture Bill (Views of Ayrshire Farmers)

Willie Coffey (Scottish National Party, Kilmarnock and Irvine Valley)

2. To ask the Scottish Government how it will take account of the views of Ayrshire farmers as part of its proposed agriculture bill. (S6O-02393)

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

In the autumn of last year, in preparation for the agriculture bill, we ran a wide-ranging series of consultation events across Scotland to listen to the views of stakeholders and members of the public. Those events included a well-attended event in Ayr, at which Ayrshire farmers and producers shared their views on what needs to feature in the draft bill in order to ensure that the future adaptive framework can respond to social, economic and environmental changes, challenges and opportunities.

Willie Coffey (Scottish National Party, Kilmarnock and Irvine Valley)

I recently met Ayrshire farmers in Kilmarnock and heard about some of their issues as well as their hopes for the new agriculture bill. One of their recurring concerns is that they feel powerless to influence the behaviour of the supermarkets when it comes to getting fair prices for their quality products.

Does the cabinet secretary recognise that? Although we have no powers in that regard, would she be willing to meet the farmers—perhaps at some point over the summer—to hear directly from them about their concerns and to hear their suggestions on how such matters could be taken forward?

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

I would be more than happy to engage with Willie Coffey and to meet farmers in his constituency.

I absolutely recognise the importance of the issue that he has raised, which is one that is repeatedly raised with me in my capacity as cabinet secretary by different producers as I travel across Scotland.

I look forward to the engagement that I will have over the next few days through the Royal Highland Show. In addition, I have been in touch with supermarkets directly to have conversations about the issue with them. Willie Coffey will undoubtedly be aware that the issue was raised by the food security and supply task force that we had last year. One of the recommendations in the task force’s report was about engaging with the Competition and Markets Authority and the Groceries Code Adjudicator to raise such issues.

Sharon Dowey (Conservative, South Scotland)

It is better for the climate to use home-grown produce than it is to fly in costly imports, with their associated food miles emissions. Local food is high quality and is produced to high environmental standards. Buying local also helps Ayrshire farmers to keep producing the first-class food that they are renowned for. The Scottish Conservatives have a plan for that as part of our sustainable food future policy.

Will the agriculture bill learn from our policy and help to encourage more people and organisations in Ayrshire to buy good local food?

The Deputy Presiding Officer

We will need to have briefer supplementaries and briefer answers.

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

I will try to be as brief as possible, Deputy Presiding Officer.

I absolutely agree with the points that Sharon Dowey has made about the importance of supporting our local producers and having short and resilient supply chains. That is why it is unfortunate that her party, through the United Kingdom Government, has signed us up to trade deals that will result in imports that undercut our industry in Scotland.

Colin Smyth (Labour, South Scotland)

On a recent visit to Meinside farm, near Lockerbie, the message from farmers, once again, was that the uncertainty over future funding mechanisms is causing significant concern. When will the agriculture bill be published? Will it provide details of what will be expected of farmers in order to secure that funding in future? The uncertainty about that is a major concern.

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

First, I make the point—which is one that I have made previously in the chamber—that there will be no cliff edges when it comes to support for our farmers.

With regard to when the agriculture bill will be introduced, in line with the commitments that I have already outlined, we aim to introduce it this year.

In relation to clarity on the future direction of support, it is important to highlight to Colin Smyth and to other members across the chamber the existence of our “Agricultural Reform Route Map”, which outlines when the key changes will come forward and when we will provide more information and detail on those. I encourage Colin Smyth to take a look at that route map, which we will, of course, update as we proceed.

Muirburn (Prevention and Control of Wildfires)

Roz McCall (Conservative, Mid Scotland and Fife)

3. To ask the Scottish Government what its position is on whether muirburn is a crucial tool for preventing and controlling wildfires. (S6O-02394)

Gillian Martin (Scottish National Party, Aberdeenshire East)

I am aware of the recent devastation caused by wildfires. The Cabinet Secretary for Rural Affairs, Land Reform and Islands recently visited a site at Daviot to thank forestry staff, firefighters and the local community for their work tackling wildfires. Sadly, the risk of wildfires in Scotland is likely to increase with climate change. We must continue to tackle the issue and encourage people to behave responsibly when outdoors.

Muirburn can make a significant contribution to the prevention and control of wildfires. Our Wildlife Management and Muirburn (Scotland) Bill includes provisions that permit muirburn to prevent and reduce the risk of wildfires.

Roz McCall (Conservative, Mid Scotland and Fife)

Professor Heinemeyer of the University of York has been studying peatlands for two decades. Regarding ways to prevent wildfires, he said:

“you come across a lot of ‘rewetting will solve all the issues’. But it’s not guaranteed. You can’t get a wet bog everywhere because of different rainfall amounts. That is wishful thinking.”

If we want down-to-earth thinking that will prevent wildfires and protect peatland and the species that live in an area, muirburn must be an important tool in our land management inventory.

I recognise that the minister said that there will be some muirburn. Can she confirm that the muirburn bill will not regulate the practice to be the last resort, which would risk the damage of unnecessary wildfires?

Gillian Martin (Scottish National Party, Aberdeenshire East)

I agree with a lot of what Roz McCall has said, and I can confirm again, if she would like me to, that we recognise that licensing muirburn will allow it to take place, particularly in areas where it mitigates the risk of wildfire.

Peatland is also a tool that we have in our box to control wildfires, not just from the point of view of climate change and sequestering carbon, but with regard to the provision of areas where burning will be controlled because of wet peatland and re-established peatland.

The Deputy Presiding Officer

I have a number of supplementaries, which will need to be brief, as will responses.

Karen Adam (Scottish National Party, Banffshire and Buchan Coast)

Given the seriousness of recent wildfires and the impact that that has had on forestry staff and fire officers, shame on the Tories for turning the issue into a political football. The Scottish Government has already stated that there are situations in which muirburn is the best option. Can the minister confirm that the Government is seeking to ensure that muirburn is used only where appropriate and that best practice is followed?

Gillian Martin (Scottish National Party, Aberdeenshire East)

I appreciate that there is a range of views on muirburn. As I said in my response to Roz McCall, I am completely aware that muirburn can be a positive tool when used appropriately, in creating beneficial habitats for certain species, helping to reduce fuel loads, and lowering and controlling the risk of wildfires.

The introduction of muirburn licensing, through the Wildlife Management and Muirburn (Scotland) Bill, will ensure that muirburn is undertaken in a safe and environmentally sustainable manner, in line with best practice. The licensing scheme will allow muirburn for a number of purposes, including preventing or reducing the risk of wildfires.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

Upland management is very important, particularly for public health, but also for biodiversity. Will Asulox be approved in Scotland? That is an urgent matter.

The Deputy Presiding Officer

I do not think that that is relevant to muirburn. I will move on to Murdo Fraser.

Murdo Fraser (Conservative, Mid Scotland and Fife)

I was going to ask a similar question. Clearly, dry bracken is a major contributor to the risk of wildfire, which is the topic of the question. When will the use of Asulox to control bracken be permitted in Scotland, given that permission for its use was given in England last week?

The Deputy Presiding Officer

Minister, is there anything that you can add to what you have already said?

Gillian Martin (Scottish National Party, Aberdeenshire East)

No, there is not. I made my point on the licensing of muirburn, and I will stick with that.

Beaver Relocation (Impact on Farmers)

Jim Fairlie (Scottish National Party, Perthshire South and Kinross-shire)

4. To ask the Scottish Government what discussions the rural affairs secretary has had with ministerial colleagues regarding the reported concerns of farmers about the potential impact on their productivity of beaver relocation. (S6O-02395)

Lorna Slater (Green, Lothian)

The reintroduction of beavers brings clear benefits for our biodiversity and ecosystems. However, I understand that beavers can have adverse impacts on some types of agriculture. I have not met ministerial colleagues, including the Cabinet Secretary for Rural Affairs, Land Reform and Islands, to discuss that particular issue.

NatureScot has a range of mitigation measures to help to protect farms, and there are arrangements that allow lethal control of animals as a last resort. Additionally, all translocation projects must follow the process in the Scottish code for conservation translocations, including appropriate engagement with the people who are most likely to be affected.

Jim Fairlie (Scottish National Party, Perthshire South and Kinross-shire)

Beaver numbers are expected to rise to 10,000 before the end of the decade. That is clearly a cause for concern for farmers, who are justifiably worried about the threat that beavers pose to their land, given the evidence that they cause significant and costly agricultural damage should they appear in the wrong areas.

Back in 2019, the then environment secretary, Roseanna Cunningham, gave an assurance that Scottish farming would not be compromised by beavers. What mitigation does the Government intend for those who have already been affected by beaver damage? How will relocated beavers be managed to avoid unnecessary damage to farmland in the areas to which they are relocated?

Lorna Slater (Green, Lothian)

Our Scottish beaver strategy, which was developed in partnership with stakeholders including NFU Scotland and Scottish Land & Estates, provides the direction of travel for beaver management in Scotland. The Scottish code for conservation translocations sets out the consultation process for proposed projects and ensures that those who are likely to be affected by proposals can have their views heard.

NatureScot’s beaver management scheme is integral to our work on managing beaver impacts. The scheme provides farmers and other land managers with mitigation advice, including proactive measures to prevent beaver impacts. Those include tree protection and the installation of flow devices and beaver exclusion fencing.

Although we consider lethal control to be a last resort, licensing approaches are available to prevent serious damage where mitigation cannot resolve conflict.

Edward Mountain (Conservative, Highlands and Islands)

I remind members of my entry in the register of members’ interests, which relates to farming and fishing on Speyside.

Beavers do not just damage crops; they damage trees, too. Given that the Government again missed its tree-planting targets last year, how does the minister propose to protect important young riparian trees that are being planted to mitigate damage caused by beaver reintroductions? Please do not suggest wrapping them in plastic, minister.

Lorna Slater (Green, Lothian)

As I set out in my previous answer, our beaver strategy, which outlines the direction of travel for beaver management in Scotland, has been developed with more than 50 stakeholders that have worked towards it, including the Scottish Wildlife Trust, NFUS and Scottish Land & Estates. They have collaborated on the strategy’s aims, which are in line with the Government’s aims.

The strategy also sets out the importance of community engagement in achieving those aims. As I have previously set out, the installation of protection for valuable trees is part of our beaver mitigation measures, which we will continue to support as we move forward.

New Entrants into Agriculture

Elizabeth Smith (Conservative, Mid Scotland and Fife)

5. To ask the Scottish Government what measures it has put in place to support new entrants into agriculture. (S6O-02396)

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

The Scottish Government continues to invest in new entrants and the rural workforce. Since 2015, we have granted in excess of £28 million through a combination of national reserve, start-up and capital grant schemes.

Additionally, we have provided 122 land opportunities through the farming opportunities for new entrants programme group and have supported more than 82 joint ventures through the Scottish Land Matching Service. We continue to offer a range of general and bespoke consultancy advice to new entrants through the Farm Advisory Service. We are also pleased to support the machinery ring pre-apprenticeship programme to create opportunities for young people in rural areas.

Elizabeth Smith (Conservative, Mid Scotland and Fife)

That is helpful, but the cabinet secretary will be aware that several large corporate entities are buying up large tracts of property for forestry in order to meet climate change targets. That means that substantial areas of land are being taken out of agricultural use at a time when we desperately need food security. That is concerning my constituents in Perthshire, who have raised the matter with me on the basis that it also deters new entrants into agriculture. What will the Scottish Government do to address such concerns?

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

I am aware of those concerns, and Liz Smith has raised an important point. One factor that we see coming through the forestry grants scheme is that about 80 per cent of applications to it are for smaller pieces of land and small farms.

We want to ensure that we are putting the right trees in the right places. There is a strong role for both forestry and agriculture, including through agroforestry. We have an integrating trees network, which shows how we can combine those aspects.

The member also raised a critical point about our food security. As with many of the issues that we discuss in the chamber, our approach needs to be about ensuring that we get the balance right. We want to continue to see integrated land use, which has benefits not only for our environment but for our farming businesses.

Emma Harper (Scottish National Party, South Scotland)

Can the cabinet secretary confirm how much funding the Scottish Government has provided for new entrants and young farmers since 2015 and how that compares with other nations of the United Kingdom?

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

The Scottish Government has invested considerable sums for new entrants during the course of a number of years. Since 2015, we have provided just over £7-million worth of support via direct payments. We have provided around £12 million through the young farmers start-up grant as well as £600,000 for the new entrants start-up grant. It is important to highlight that those forms of support for new entrants were discontinued in England.

Beatrice Wishart (Liberal Democrat, Shetland Islands)

Given the contributions that new people in the sector can make to both food security and biodiversity loss, what additional measures can the Scottish Government take on retention of new crofting and agriculture entrants?

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

The member raised a very important point. We committed in our manifesto to providing new-entrant support, and it is important that we learn from the schemes that we have had in the past.

I was delighted to attend one of the farming opportunities for new entrants groups in Bute last week. It was interesting to hear from the farmers directly, and from the young farmers who were there, about some of the challenges that they faced in getting those opportunities. We want to ensure that we are breaking down barriers and providing opportunities.

I am keen that we learn from schemes that we have had in the past as we look to develop new support.

Wildlife Crime Investigation Powers (Report)

Meghan Gallacher (Conservative, Central Scotland)

6. To ask the Scottish Government when the report by the taskforce to consider whether to extend wildlife crime investigation powers to the Scottish SPCA will be published. (S6O-02397)

Gillian Martin (Scottish National Party, Aberdeenshire East)

The report provided by the Scottish SPCA task force has been published on the Scottish Government web pages this morning. I thank the task force for conducting the review and producing its final report. I will be providing a response to the recommendations in the report in due course.

Meghan Gallacher (Conservative, Central Scotland)

On Monday, I had the pleasure of joining the Scottish raptor study group to visit red kite nests. The conversation centred around the importance of red kite conservation. However, the team also highlighted incidents of raptor persecution—a practice that I am sure we all condemn.

The SSPCA faces financial difficulties at present, and I am concerned that, should the Scottish Government not fund the organisation correctly, officers will be stretched when trying to fulfil their duties. That would include investigation powers should the bill be approved by Parliament. What reassurance can the minister provide that she will ensure that the SSPCA is fully supported?

Gillian Martin (Scottish National Party, Aberdeenshire East)

I appreciate everything that Meghan Gallacher said about raptor persecution, and I agree with an awful lot of her concerns. The SSPCA is not Government funded, but Scottish Government officials regularly meet the SSPCA to discuss current issues and to provide support, when appropriate. Like many charities, its income comes from other means—including membership, fundraising and legacy donations among other things. We will do everything that we can, in consultation with the SSPCA, to ensure that it is supported to carry out any duties, should we decide to give them to the SSPCA.

Mark Ruskell (Green, Mid Scotland and Fife)

Barriers under existing powers mean that SSPCA inspectors who are already on the ground investigating animal abuse are prevented from seizing and securing evidence of wildlife-related crimes, and inspectors are further limited to enforcing powers only on living animals, with their hands tied if a wild animal is found dead. Does the minister agree that that is inexcusable, and will she close the loopholes during future stages of the Wildlife Management and Muirburn (Scotland) Bill?

Gillian Martin (Scottish National Party, Aberdeenshire East)

Mark Ruskell will know, because I was on the same committee as him during the previous session, that we heard exactly that kind of concern being raised about SSPCA officers not being able to act in certain situations when they

found that there had been animal cruelty—particularly in situations involving wildlife.

The report that has been published today outlines what the SSPCA says that it can do. I am open to ideas about what we can do to support it to do that and close those loopholes.

Land Assembly Powers (Public Bodies)

Ariane Burgess (Green, Highlands and Islands)

7. To ask the Scottish Government whether it will introduce compulsory sales orders through its proposed land reform bill, in light of its plans to address the need for effective, efficient and fair land assembly powers for public bodies, as referred to in the Bute house agreement. (S6O-02398)

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

We recognise the importance of effective, efficient and fair land assembly powers for public bodies. That is why we are committed to reviewing compulsory purchase order powers to ensure that they remain fit for purpose. In 2023-24, we will appoint an expert advisory panel to inform the development of options for reform.

Work on the introduction of compulsory sales orders was undertaken in the previous parliamentary session and it will be considered more fully in this one, too.

Ariane Burgess (Green, Highlands and Islands)

It is encouraging that, this year, the Scottish Government is investing £10 million in projects to tackle the waste of derelict land, such as the decontamination and redevelopment of former military land at Cromarty Firth so that affordable homes can be built.

However, given the exceptional demand and skyrocketing prices for land right now, we must make better use of the 9,500 hectares of land that is currently benefiting neither people nor nature. Does the cabinet secretary agree that compulsory sales orders for councils to auction long-neglected land are a necessary tool for ensuring that the people of Scotland are getting the most out of their land?

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

In my initial response, I mentioned the work that would be undertaken on compulsory purchase orders. Councils already have such tools, which they are using to repurpose land for the benefit of local communities and their local areas.

However, as I have highlighted, we are considering how the introduction of compulsory sales orders might enhance the tools that are already available to local authorities. We will continue to engage with our stakeholders on that in order to really understand the need for those orders and to discuss the issues that were identified when the matter was initially raised, during the previous parliamentary session. Ultimately, that also has to include how any introduction of compulsory sales orders might comply with the European convention on human rights.

Mercedes Villalba (Labour, North East Scotland)

The Bute house agreement also refers to applying a public interest test to transfers of large-scale landholdings, but very few large landholdings are transferred in Scotland each year. Does the minister agree that waiting

for all large landholdings to be transferred will take decades and that we need a public interest test that applies to existing holdings?

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

The member will, no doubt, be aware that we published the results of our consultation on our proposals for legislation a couple of weeks ago. We will be considering the views that have been expressed through that consultation as we develop our proposals for a land reform bill, which we will be looking to introduce soon. I look forward to working with the member and discussing the issues that have arisen from that as we take forward the work on the bill, which will look to address the issues.

Brian Whittle (Conservative, South Scotland)

If the Scottish Government takes the proposal forward, can the minister confirm whether, in the event of a compulsory sale, the new landowner will be required to put the land to the use that it is designed for? If so, can she e

xplain how that will be enforced?

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

It is not possible for me to set that out at the moment because, as I have said, although the issue was considered in the previous parliamentary session, a lot of work still needs to be undertaken in relation to that. However, we would of course look to bottom out some of the issues that the member has raised.

Crofting Law (Reform)

Alasdair Allan (Scottish National Party, Na h-Eileanan an Iar)

8. To ask the Scottish Government whether it will provide an update on its plans to reform crofting law. (S6O-02399)

Gillian Martin (Scottish National Party, Aberdeenshire East)

As stated in the Scottish policy prospectus, I am committed to the reform of crofting law by 2026, subject to agreement by Parliament, to support the future of crofting.

The crofting bill group has made good progress, since it was reinstated in May 2022, and it has reached a consensus on many topics. The group is considering the issues raised by the bill group in 2016 to 2018; the issues that the Law Society of Scotland singled out for a crofting law reform project in 2020; and the issues identified by the Crofting Commission to make crofting regulation less onerous for crofters and the commission.

Alasdair Allan (Scottish National Party, Na h-Eileanan an Iar)

A range of issues daily highlight the need for crofting law reform, not least the issue of c

ommon grazings. Given that crofting law expert Sir Crispin Agnew has noted that the current law is inadequate to manage subsidy regimes, environmental obligations and renewables opportunities, can the minister say whether the legislation will deal with those issues—in particular, in relation to common grazings?

Gillian Martin (Scottish National Party, Aberdeenshire East)

As is stated in the 2021 manifesto, work on crofting law reform will be undertaken during this parliamentary session and a decision on the timing of the bill will be taken by the Cabinet in the context of setting out future legislative programmes in the normal way.

Mr Allan will know that the crofting bill group is looking at a wide range of issues to inform that draft bill, and we have asked the group to look at how we can make crofting legislation more relevant to modern crofting. Some of the things that he has mentioned are under consideration, and one of the issues being considered by the crofting bill group in its work on crofting law reform is common grazings.

The Deputy Presiding Officer

That concludes portfolio questions on rural affairs, land reform and islands. There will be a brief pause before we move on to the next portfolio to allow members on the front benches to change.

NHS Recovery, Health and Social Care

The Deputy Presiding Officer

The next portfolio is national health service recovery, health and social care. Members who wish to ask supplementary questions should press their request-to-speak buttons during the relevant question. We have a lot of interest in asking supplementaries, but we are due to sit late this evening and have no time in hand. Questions will, therefore, need to be brief, as will responses.

Surgery Waiting List (Pelvic Organ Prolapse)

Michael Marra (Labour, North East Scotland)

1. To ask the Scottish Government how many women are currently waiting for surgical treatment for a pelvic organ prolapse. (S6O-02400)

Jenni Minto (Scottish National Party, Argyll and Bute)

Information on the number of patients waiting for pelvic organ prolapse surgery is not held centrally by the Scottish Government.

However, we are keen to ensure that those patients are seen as soon as possible, so we are working with the centre for sustainable delivery to adopt a national approach to expediting waits for a range of urogynaecology treatments, and work has started on that with the relevant health boards.

Michael Marra (Labour, North East Scotland)

The minister might recognise some of the cases that I have raised in the chamber, including one of an eight-and-a-half year wait for one woman in my region. I have since been contacted by another two women, one of whom has been waiting 14 years for surgery. I am very keen to understand from the minister whether that is a national situation or one that pertains only to Tayside. If the minister could commit to looking into the matter, that would be appreciated.

Jenni Minto (Scottish National Party, Argyll and Bute)

First, I apologise to the women who have had those experiences. I will check with my officials to find out what information we hold and will get back to Michael Marra. I absolutely commit to doing that.

Dermatology Services (Investment)

Stephanie Callaghan (Scottish National Party, Uddingston and Bellshill)

2. To ask the Scottish Government what impact it anticipates that its recent £1.8 million investment will have on dermatology services. (S6O-02401)

Jenni Minto (Scottish National Party, Argyll and Bute)

The new programme, which enables primary care teams to send digital images of a patient’s skin condition to specialists, with the potential for up to 90 per cent of referrals to include a digital image, could reduce demand for outpatient dermatology appointments by up to 50 per cent.

That will lead to a better and quicker service for patients, allowing clinicians to see patients in the right place and sooner. Modernising our services with such innovations supports patient care, reduces pressure on our workforce and is absolutely vital for the future of our healthcare service.

Stephanie Callaghan (Scottish National Party, Uddingston and Bellshill)

Such innovations in our national health service are, indeed, welcome.

I have a specific question about topical corticosteroid treatments for inflammatory skin conditions. Although those are generally safe and effective in the short term, a number of my constituents have experienced withdrawal reactions after using those creams for longer periods. They describe a range of symptoms including burning or stinging, intense itching, peeling skin and skin redness extending beyond the area that was originally treated. The physical and emotional impact can be devastating.

Can the minister confirm whether there will be a key focus on reducing the number of patients using topical corticosteroids for prolonged periods while the work to improve treatment pathways continues?

Jenni Minto (Scottish National Party, Argyll and Bute)

Having spoken with some people who are affected by that, I recognise the impact that topical steroid creams can have. That is why we are bringing in that new way of working. By capturing images in primary care and enabling triage in secondary care, the programme will support timely access for patients who need secondary care and treatment, while providing quicker and more specific advice to primary care to support patients who do not need that secondary care.

Management within primary care might include reassurance for patients with lesions, guidance to monitor the condition, or medical treatment. I note that prescribing decisions are matters for clinicians, taking into account the individual circumstances and treatment needs of each patient.

Grass-roots Sport (Support)

Graham Simpson (Conservative, Central Scotland)

3. To ask the Scottish Government what steps it is taking to support grass-roots sport in Scotland. (S6O-02402)

Maree Todd (Scottish National Party, Caithness, Sutherland and Ross)

Earlier this month, sportscotland announced record annual investment figures to support the delivery of sport and physical activity. Across 2023-24, sportscotland will invest up to £36.7 million of Scottish Government and national lottery funding into Scottish governing bodies of sports, local authorities and wider national partners. That includes significant investment in support for grass-roots sport in Scotland, supporting local authority partners in the delivery of community and school sport through community sport hubs and the active schools network.

Since April 2007, sportscotland has invested more than £204 million to help sports clubs, community groups, local authorities, sports governing bodies and other organisations to deliver new and upgraded sporting facilities.

Graham Simpson (Conservative, Central Scotland)

The minister will be aware that councils have been forced to close facilities due to Scottish National Party cuts. I am sure that she is also aware that the United Kingdom Government has invested in facilities across Scotland—including £500,000 in Lanarkshire—through its multisport grass-roots facilities programme. Does the Scottish Government have a similar specific fund for grass-roots sport?

Maree Todd (Scottish National Party, Caithness, Sutherland and Ross)

We have discussed the issue of investment in grass-roots sports a number of times in the chamber. As I have set out, sportscotland is the body that we use to make those investments, and there has been a substantial increase this year in the investments that we are making in that regard.

In terms of local government finance, we absolutely recognise the crucial role that councils and their employees play in communities across Scotland, and the challenging financial circumstances that they face. However, under the UK Government, we have suffered a decade of austerity, with average real-terms cuts of more than 5 per cent, which equates to a loss of £18 billion. Despite that, local authority revenue funding is £2.2 billion—22.9 per cent—higher in cash terms in the current financial year than it was in 2013-14. That shows that we have managed to protect local authority budgets.

Of course, local authorities are democratically elected bodies and they make their own decisions about how they spend their money and where they focus their attention. As anyone would expect, central Government cannot interfere in those decisions.

The Deputy Presiding Officer

A couple of members want to ask supplementary questions. They will need to be brief, as will the responses.

Emma Harper (Scottish National Party, South Scotland)

The minister mentioned active schools. Can she provide an update on the work that is being done with sportscotland to ensure that active schools programmes are free for all children and young people by the end of this parliamentary session?

Maree Todd (Scottish National Party, Caithness, Sutherland and Ross)

We are working with sportscotland and local authorities to phase out charging for active schools, which is a really important commitment of this Government. Sportscotland continues to work with partners to address the very small number of cases where charging remains, and is taking a managed approach in order to avoid unintended negative impacts on the level of sport and physical activity provision in those communities.

Sportscotland’s record annual investment in local authorities—which reached £16.2 million last year—will support councils with rising staff costs and allow them to drive and strengthen the active schools programme’s focus on inclusion. That focus is about supporting children who are living in poverty, those with additional support needs and care-experienced young people to participate.

Brian Whittle (Conservative, South Scotland)

School provided many of us with our introduction to sport. Can the minister tell us more about investment in school sport and enabling the school estate to remain open after 4 o’clock, because sport is now becoming the bastion of the middle classes?

Maree Todd (Scottish National Party, Caithness, Sutherland and Ross)

Brian Whittle and I have engaged on this issue many times. I recognise that we share a passion for sport. I argue that sport is not becoming a

bastion of the middle classes,

but has long been a bastion of the middle classes. In fact, our data illustrates that, other than participation in football, which is equitable across socioeconomic groups, almost all other sports favour the rich and wealthy. It has long been thus, which is why this Government is focused on tackling that inequality. We are focused on the active schools programme and on removing charging for it to ensure that every child who lives in Scotland can have the opportunity to participate in sport and gain the benefits that that brings them. Those benefits include not only benefits that would be associated with physical activity; as Brian Whittle can testify, involvement in sport brings other lifelong benefits.

Community Link Practitioners (General Practice)

John Mason (Scottish National Party, Glasgow Shettleston)

4. To ask the Scottish Government what plans it has for the future of community link practitioners working with general practitioner practices, in particular in more deprived areas. (S6O-02403)

Michael Matheson (Scottish National Party, Falkirk West)

We remain committed to community link workers in general practice. Their role aligns strongly with the missions on equality and community in our policy prospectus, “Equality, opportunity, community: New leadership—A fresh start”, in which we also committed to increasing investment in general practice serving disadvantaged areas.

Funding for primary care improvement plans has been maintained at £170 million in the current financial year, and each health and social care partnership determines how to deliver link worker services within its own improvement plan. The Scottish Government recognises that there are service variations across Scotland, and we are currently reviewing local community link worker delivery in order to understand the benefits and challenges of those different approaches.

John Mason (Scottish National Party, Glasgow Shettleston)

I take the cabinet secretary’s point that the HSCPs are central to how that delivery goes forward. However, would he agree that those link workers are very much valued by GP practices, especially in deep-end areas in constituencies such as mine? Would he agree that, if the GP practices and everybody else had a bit more certainty over funding for the future, that would help the patients, the GP practices and the staff?

Michael Matheson (Scottish National Party, Falkirk West)

Yes—I agree with the points that Mr Mason raises, including on the specific issues regarding his constituency. I appreciate that there has been a level of uncertainty for those staff and for the patients who have benefited from the community link worker programme. I am pleased that we have been able to address that uncertainty, as the member referred to, and I recognise that the health and social care partnerships are working to try to address some of the contractual issues as we move forward.

In addition, I reassure the member that, as part of the review programme that we are taking forward, I want to look at how we can give a greater level of certainty and consistency into the future with regard to how community link workers will be provided in general practices, particularly in our more deprived areas, in order to ensure that we are dealing with the issues in a consistent way that gives people assurance about our long-term vision in taking the programme forward.

The Deputy Presiding Officer

A number of members have supplementary questions. They will need to be brief, as will the responses.

Sandesh Gulhane (Conservative, Glasgow)

I agree that we need more community link workers. I absolutely value them when I get to work with them in practice. However, the Scottish National Party has broken its promise to GPs with the new contract. The £65 million cut has broken the SNP promise to all primary care, and the GP contract was and is detrimental to rural areas. I therefore ask the cabinet secretary why primary care and GPs should believe him now.

Michael Matheson (Scottish National Party, Falkirk West)

We have a very strong commitment to primary care. One of the examples of our commitment to improving and investing in it has been the rapid expansion of the multidisciplinary team across primary care. More than 3,000 additional staff, including allied health professionals, were brought into that particular group in order to expand capacity in our primary care setting by supporting GPs in their work alongside the very important work that our community link workers carry out. That is a clear example of this Government’s determination to expand and develop our primary care setting.

Paul Sweeney (Labour, Glasgow)

Community link workers play a crucial role in community mental health support in particular. The SNP’s previous programme for government, “A Fairer, Greener Scotland: Programme for Government 2021-22”, committed to establishing 1,000 additional mental health roles to support wellbeing hubs for every GP practice and improve community mental health resilience. Given that the summer recess begins next week, will the Scottish Government have created those roles before the next programme for government or will that be yet another failed commitment from this Government?

Michael Matheson (Scottish National Party, Falkirk West)

We are determined to do everything that we can to help to support the issues around mental health and the services that can help to support individuals who are experiencing mental health challenges. However, we have also had to look at prioritisation in our budget, given the budget cuts that we are experiencing as a result of decisions that have been made by the United Kingdom Government, which have a direct impact on the Scottish Government’s budget.

I assure the member that we will continue to look at what further support we can provide to GP practices in the way of community mental health support in order to ensure that we provide the support and assistance that is required.

Willie Rennie (Liberal Democrat, North East Fife)

The cabinet secretary’s presentation of the situation is not what people are facing in our communities. They are waiting a long time to get through to a GP because the recruitment has failed completely. The number of GP whole-time equivalents has dropped, 23 practices have closed in the past three years, and the multidisciplinary recruitment that he talked about has fallen well short of the targets.

I support link workers, but why does the cabinet secretary not get real and understand that people are really suffering in trying to access GPs?

Michael Matheson (Scottish National Party, Falkirk West)

Community link workers are an important part of the primary care team, but I suspect that the member has chosen to ignore the more than 3,000 additional staff that we have recruited into primary care over the past couple of years in order to expand and help to support capacity in that sector.

Notwithstanding that, however, I recognise that there are challenges. As a constituency MSP, I am very aware of the challenges that some of our constituents face, which is why we are also looking to increase recruitment within general practice. We need to consider how we configure primary care, ensuring that we refer people to the right services in the right way. That involves looking at the whole multidisciplinary team—GPs and the wider AHP team—so that they can support patients with long-term conditions, and even short-term conditions. That is exactly what the Government is determined to do, and that is the approach that we are taking going forward.

Ferry Cancellation Impacts (Highlands and Islands)

Donald Cameron (Conservative, Highlands and Islands)

5. To ask the Scottish Government what discussions it has had with national health service boards in the Highlands and Islands region regarding whether there has been any impact on the delivery of their services as a result of recent ferry cancellations. (S6O-02404)

Michael Matheson (Scottish National Party, Falkirk West)

Sc

ottish Government officials regularly meet representatives of all NHS boards,

including those that cover the Highlands and Islands, to discuss any challenges that are impacting on activity and to provide any necessary support. We have not been made aware of any specific impact on the northern isles. However, I understand that some out-patient activity was postponed in the Western Isles, where the travel of visiting consultants was disrupted. The patients affected were reappointed at the next available opportunity.

Contingencies are in place for patients. For example, CalMac Ferries has a medical protocol, which guarantees islanders a booking on the ferry and a taxi should they have to attend an urgent medical appointment on the mainland.

NorthLink Ferries will provide assistance to any northern isles residents who have issues in travelling to the mainland for medical appointments.

Donald Cameron (Conservative, Highlands and Islands)

In addition to the problems that the cabinet secretary has mentioned,

The Oban Times

recently reported that the hospital on Islay was unable to book patients on to ferries this month due to reduced deck space, and the Scottish Ambulance Service has confirmed to me that the recent Corran ferry breakdown resulted in longer travel times for patients and delays in getting cover back to the area. What additional help can be provided to health boards to ensure that patients can access vital health services in the event of problems with the ferry network?

Michael Matheson (Scottish National Party, Falkirk West)

I recognise that some challenges have been experienced by patients who require to make use of ferries for the purposes of accessing services or coming on to the mainland for services. We would, of course, expect boards to consider putting alternative arrangements in place where it is feasible to do so, but the critical aspect is to get greater consistency and reliability within our ferry network in order to address the issues.

The member will be well aware of the actions that are being taken in order to address those issues. We expect boards to ensure that alternative arrangements are put in place when necessary and that, if appointments have to be rearranged, they are rearranged at as early a point as possible for patients.

Nursing and Midwifery Staff

Paul O'Kane (Labour, West Scotland)

6. To ask the Scottish Government how many nursing and midwifery staff have left the national health service in the last 12 months. (S6O-02405)

Michael Matheson (Scottish National Party, Falkirk West)

A total of 8,831 nu

rsing and midwifery staff have left the NHS in the past 12 months. That information can be found on Turas in the information on the Scottish Government’s workforce planning programme.

Paul O'Kane (Labour, West Scotland)

I thank the cabinet secretary for that answer. New statistics have revealed that the use of agency staff increased dramatically in that period, rising to the equivalent of 1,741 whole-time equivalent nursing and midwifery staff in 2022-23. That is an increase of 1,018, or more than 70 per cent, on 2021-22. We know that nurses and midwives continue to leave the profession in droves due to stress and burn-out, and we know that, even though there is an astronomical use of agency staff, people cannot even access them, and wards are being left in perilous positions.

The cabinet secretary has not been in post for all that long, but he must accept that those are clear failures in workforce planning and he must take responsibility for addressing the issue. When is he going to prioritise the work of the new nursing and midwifery task force in order to ensure that it delivers a plan for providing the nursing workforce that Scotland needs?

Michael Matheson (Scottish National Party, Falkirk West)

Let me deal first with the use of agency staff and the member’s call for us to take action to address those issues. I am not sure whether he is aware of this, but action has already been taken. New protocols were introduced at the beginning of this month that place restrictions on health boards in order to reduce the amount of agency resources that they are using and to switch more towards using bank staff. Action has been taken on that, with restrictions being applied to health boards. I hope that the member will find that new information helpful to him.

On the point about prioritising the work of the task force, I am a little surprised by the tone of the member’s question. The task force has already met. I chair it, and we are due to have a second meeting. The work of the task force is already progressing. I will work with all the partners on the task force to ensure that we address the issues that it has been set up to address, including the examining of further pathways into the profession. No doubt, the member will welcome the work that the task force has carried out to date.

Clare Haughey (Scottish National Party, Rutherglen)

An analysis by the Nuffield Foundation, among others, makes it clear that Brexit is a key factor in the NHS’s staffing crisis. This week marks seven years since Scotland voted overwhelmingly to remain in the European Union, yet we continue to feel the full force of the Tories’ hard Brexit deal, which Labour fully supports. Can the cabinet secretary provide an update on efforts to ensure the further recruitment of midwives and allied health professionals from overseas in the face of those pressures?

The Deputy Presiding Officer

Please answer as briefly as possible, cabinet secretary.

Michael Matheson (Scottish National Party, Falkirk West)

Brexit is undoubtedly having a significant impact on recruitment in a range of sectors—not just in Scotland, but across the United Kingdom—including in the health and social care setting. That is the reality and those are the facts on the ground. We now have to address that challenge despite the fact that the people of Scotland voted by a significant majority against leaving the EU.

We have been taking action to help to increase our recruitment from overseas. Recently, we were able to exceed our target of recruiting an extra 750 nurses and AHPs from overseas by making some 800 offers to staff. We will continue to take work forward with our health boards to consider how we can further increase recruitment in the years ahead.

Sue Webber (Conservative, Lothian)

Some fearsome new facts from the ground show that, for the first time, the number of staff who are leaving the health service has outstripped the number who are joining it, with 75,000 NHS staff being absent due to mental illness over the past five years. It is little surprise that record numbers of NHS staff are leaving the health service. Recruiting more NHS staff will have little effect if existing staff are leaving at a higher rate, so what steps is the cabinet secretary taking to ensure that our NHS staff are valued, respected and protected? Does he accept that his predecessor, Humza Yousaf, bears the responsibility for that exodus?

Michael Matheson (Scottish National Party, Falkirk West)

We have taken forward a range of work in order to continue to recruit into our NHS. I am sure that the member recognises the very significant challenges that Brexit is now posing for the recruitment of staff, as I mentioned. Our work includes—[

Interruption

.]

Does the member want to hear what I have to say or is she just going to shout at me from a sedentary position?

Paul O’Kane mentioned the nursing and midwifery task force, which is looking specifically at new routes into the healthcare professions and particularly into nursing through apprenticeships and earn-as-you-learn programmes, both of which can open up opportunities.

I gently point out to the member that we have more NHS staff in our NHS since the Government has come into office and that, in Scotland, we have more NHS staff per head of population than the Tories have in England. That demonstrates our commitment to investing in our staff, which we will continue, despite the very poor record that her party in England has on that matter.

Gender Identity Services for Children and Young People

Murdo Fraser (Conservative, Mid Scotland and Fife)

7. To ask the Scottish Government what action it and NHS Scotland are taking to implement the recommendations of the Cass review into gender identity services for children and young people, as they apply to Scotland. (S6O-02406)

Jenni Minto (Scottish National Party, Argyll and Bute)

The NHS England-commissioned Cass review extends only to clinical services offered by NHS England. It is not considering or reviewing services provided by NHS Scotland. As members will know, how the national health service is structured and how services are commissioned differ in England and Scotland. However, as we continue to state, the on-going findings of that review, alongside other national and international evidence in the field, are being closely considered in the context of how such healthcare can best be delivered here as we work collectively to improve service delivery to children, young people and their families. Various workstreams are under way to deliver that.

To date, officials and senior clinicians from both the Scottish Government and NHS Scotland have met Dr Cass twice to share information on improvement work in Scotland, expected outputs of that review, associated timelines and opportunities for shared learning.

Murdo Fraser (Conservative, Mid Scotland and Fife)

As the minister will know, the Cass review has highlighted the significant uncertainty surrounding the use of hormone treatments for children and adolescents with gender dysphoria, reflecting the views and concerns of many in the medical profession. On 9 June, NHS England announced that puberty blockers would not be commissioned for children and young people in those categories except as part of clinical research. In light of the very serious concerns that have been highlighted, will the NHS in Scotland now take that step, too? If so, when? If not, why not?

Jenni Minto (Scottish National Party, Argyll and Bute)

Decisions on prescribing that type of treatment are for clinicians to make in consultation with the patient, following individualised assessment, and they are subject to regular monitoring. The Scottish Government remains proactive in its commitment to help to deliver high-quality healthcare to children and young people in that sensitive field of medicine.

Consistent with that, preliminary discussions are taking place between Scottish Government and NHS England officials as to what form of engagement may be possible and appropriate with NHS England’s recently announced but not-yet-in-place clinical research study on puberty blockers. However, the situation in Scotland remains unchanged.

Significant Adverse Event Reviews

Kaukab Stewart (Scottish National Party, Glasgow Kelvin)

8. To ask the Scottish Government what analysis it has undertaken of the results from NHS Scotland significant adverse event reviews. (S6O-02407)

Michael Matheson (Scottish National Party, Falkirk West)

The national adverse events notification scheme has been in place since 1 January 2020, following the then Cabinet Secretary for Health and Sport’s instruction to Healthcare Improvement Scotland to collect significant adverse event review data for category 1 adverse events from health boards.

Health boards are responsible for delivering safe, effective and person-centred care at a local level. That includes inputting into the national notification system. The Scottish Government does not routinely request that data from Healthcare Improvement Scotland, but we work closely with it to ensure that the processes are implemented and improved in line with national policies and frameworks.

Kaukab Stewart (Scottish National Party, Glasgow Kelvin)

According to NHS Greater Glasgow and Clyde’s publication of 2020-21, the most common contributory factor to be identified in a SAER was guidance not being followed. Last year, my constituent Kathanna McGivern, who is in the public gallery, sadly lost her grandfather, John, when he was receiving NHS care. The SAER that was carried out confirmed that guidance had not been followed, which may have caused or contributed to his death.

How can the Government and NHS Scotland effectively learn from adverse events in order to improve the guidance that is provided and allow best practice to be actively promoted across Scotland?

Michael Matheson (Scottish National Party, Falkirk West)

I am sorry to hear of the loss Ms McGivern’s grandfather, John. I believe that she has written to me separately on the matter.

Safety is at the heart of everything that we do. The national adverse events framework has been developed by Healthcare Improvement Scotland in collaboration with NHS boards and its purpose is to provide an overarching framework. It has been developed using best practice to support care providers to effectively manage adverse events when they occur.

I assure Kaukab Stewart that Healthcare Improvement Scotland is currently reviewing the framework. We are considering what further work can be taken forward to ensure that we continue to learn from significant adverse events. We are taking forward a piece of work around what is called the community of practice, which is being trialled with NHS boards as part of the adverse events framework to ensure that we maximise the learning that can come from such incidents.

The Deputy Presiding Officer

That concludes portfolio questions. There will be a brief pause before we move on to the next item of business.

Business Motion

Annabelle Ewing (Scottish National Party, Cowdenbeath)

The next item of business is consideration of business motion S6M-09621, in the name of George Adam, on behalf of the Parliamentary Bureau, setting out a timetable for the stage 3 consideration of the Bail and Release from Custody (Scotland) Bill.

Motion moved,

That the Parliament agrees that, during stage 3 of the Bail and Release from Custody (Scotland) Bill, debate on groups of amendments shall, subject to Rule 9.8.4A, be brought to a conclusion by the time limits indicated, those time limits being calculated from when the stage begins and excluding any periods when other business is under consideration or when a meeting of the Parliament is suspended (other than a suspension following the first division in the stage being called) or otherwise not in progress:

Groups 1 and 2: 1 hour 45 minutes

Groups 3 to 5: 3 hours 15 minutes

Groups 6 to 8: 4 hours 30 minutes

Groups 9 to 11: 5 hours 30 minutes

Groups 12 to 14: 6 hours 30 minutes

Groups 14 to 16: 7 hours.—[

Martin Whitfield

]

Motion agreed to.

Bail and Release from Custody (Scotland) Bill: Stage 3

Annabelle Ewing (Scottish National Party, Cowdenbeath)

The next item of business is stage 3 proceedings on the Bail and Release from Custody (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2—that is, SP Bill 16A—the marshalled list and the groupings of amendments. The division bell will sound and proceedings will be suspended for around five minutes for the first division of the stage 3 proceedings. The period of voting for the first division will be 45 seconds. Thereafter, I will allow a voting period of one minute for the first division after any debate, and subsequent divisions will be 45 seconds. Members who wish to speak in the debate on any group of amendments should press their request-to-speak button or enter the letters RTS in the chat function as soon as possible after I call the group.

I advise members that there will be some comfort breaks and that members will be notified of the timings and duration of those in due course.

Members should now refer to the marshalled list of amendments.

The Deputy Presiding Officer

G

roup 1 is on “Decisions on bail: relevant information”. Amendment 67, in the name of Pauline McNeill, is grouped with amendments

15, 16, 68, 19, 20 and 21.

Pauline McNeill (Labour, Glasgow)

The focus of the bill is to limit custody to those who pose a risk to public safety or to when it is necessary to prevent significant risk of prejudice. There are clearly benefits to reducing the damaging effects of short-term detention. Section 1 requires the court to give criminal justice social work the opportunity to provide information to the court when making decisions about bail.

Under the current language in the bill, that opportunity is mandatory. Although I think that the intention is good, I raised concerns at stage 2 about the inconsistencies in the provision of justice social work in courts across the country. In Glasgow, we are well served, but other parts of Scotland are not. Therefore, the opportunity will not be equal across the country.

Amendment 67 would replace the requirement that the court “must” request information from justice social work, and it would make that discretionary by inserting that the court “may” request that information. In a written submission to the Government, the Senators of the College of Justice stated:

“there will be many occasions on which such input is plainly irrelevant and the imposition of a statutory requirement to seek a report in such circumstances would seem inappropriate. For example, if an accused person is charged with a serious offence of violence and has a significant record of similar offending there is, on the face of it, very little prospect of that person being granted bail. In such cases it is difficult to see any purpose in requiring the court to seek a report with the attendant delay and demands upon the resources of the social work department.”

David Fraser of the Scottish Courts and Tribunals Service also noted that, if justice social work reports were required in every case, that would create the potential for reports not being available when they were required in court.

I would like the Parliament to note that, in my exchange with the Cabinet Secretary for Justice and Home Affairs at stage 2, she clearly and helpfully set out that there is no intention behind the provision to delay any proceedings of the court in that manner, although some people had thought that that was the case. It just seems to me that it would make more sense to say that there “may” be an opportunity, rather than that there “must” be one, because the opportunity does not have to be taken up in every single case.

My amendment 67 would remove the statutory requirement to seek a report and, instead, allow the court a degree of discretion, depending on the context of the case and the history of the alleged offender.

I move amendment 67.

Maggie Chapman (Green, North East Scotland)

Before I speak to my amendments in this group, I would like to thank the victim support organisations and others who have worked tirelessly to ensure that the voices of victims and survivors are heard in this process. I appreciate that we will not all agree on everything today, but I am grateful to them for their insight and expertise. I refer members to my entry in the register of members’ interests.

Amendments 15, 16 and 21 focus on the new victim safety element of the proposed bail test. Throughout the scrutiny process, I have listened carefully to the voices of victims organisations, which rightly wish to ensure that the court has the fullest possible information about victims’ safety concerns at the time of making a bail decision, including decisions on special conditions of bail.

Amendment 15 aims to strengthen that area. In particular, it would add to the court’s general power to seek further information that is relevant to the bail decision from the prosecutor, the legal representative of the accused or, as amended by the bill, justice social work by expressly enabling the court to ask the prosecutor to provide it with information on the risk of harm to the complainer.

Amendment 15 would make clear the situations in which victim safety is a relevant consideration in a case before the court, such as cases of domestic abuse or sexual offending. The court could then ask the prosecutor for additional information to help it to make a determination on bail. The amendment would also serve to emphasise to the court the importance of the victim safety element of the new bail test and of being as fully informed as possible when making bail decisions.

Amendments 16 and 21 are consequential on amendment 15. Amendment 16 is a technical amendment that will be necessary if amendment 15 is accepted. It would make minor and technical amendments to section 1(3)(c) to reflect that section 23B(7) of the Criminal Procedure (Scotland) Act 1995 will no longer immediately follow section 23B(6). Amendment 21 would amend the definitional power in section 2(2)(c) of the bill to ensure that the definitions of complainer harm and psychological harm also apply for the purpose of the new section 23B(6A) that I am proposing to be inserted into the Criminal Procedure (Scotland) Act 1995. I ask members to support amendments 15, 16 and 21.

The Deputy Presiding Officer

I call Katy Clark to speak to amendment 68 and other amendments in the group.

Katy (Labour, West Scotland)

Amendment 68 focuses on the resources that local authorities need to provide justice social work. It requires the Scottish Government to report on the operation of section 1 of the bill and the impact on local authorities, particularly on whether they have adequate resources to meet the requirements of the legislation, whether further resources are required and, if so, what action needs to be taken to address that.

Amendment 68 would require the Scottish Government, in the preparation of the report, to consult local authorities and any professional bodies that represent social workers. The background is that funding for justice social work has been flat for the past three years, which is a real-terms cut of £86.5 million. Social Work Scotland said that

“members report that waiting times for assessments, support and treatment are all increasing, and in some social work teams over 30% of posts are unfilled”.

Unison Scotland said that justice social workers are faced with some of the highest case loads and that many local authorities are scaling back social work services as a result of real-terms cuts in local government funding.

It is clear that the Scottish Government wishes to enhance the role of justice social work in the provision of information to the courts. Scottish Labour also wants that, but it is difficult to see how it can happen without additional resource. When I lodged the same amendment at stage 2, the cabinet secretary acknowledged the budgetary challenges and said that the introduction of the legislation would be phased. However, the financial memorandum does not recognise the serious cost and resource implications of the proposals. It is not possible to lodge amendments to require the funding that is needed for adequate resourcing, so amendment 68 has been lodged to ensure focus and scrutiny on the resourcing issues.

The Deputy Presiding Officer

I call Jamie Greene to speak to amendment 19 and other amendments in the group.

Jamie Greene (Conservative, West Scotland)

I put on the record my and my party’s thanks to all those organisations that have worked with committee members and others during the passage of the bill.

The bill is a bill of two parts. Part 1 is the substantive part because it deals with the pivotal moment when a judge has to decide whether to remand someone in custody or bail them on release back into society, often with conditions attached. That is a grave and difficult decision.

As we go through the next couple of groups, I want to make it clear that there is little doubt that the real and general intention of the bill is to reduce the remand population in Scottish prisons.

However, the question that I sought to answer from day 1 was a simple one: is that the stated intention of the bill or the inferred one? In unearthing the answer to that, we need to look at how the Government’s proposals have been responded to by the judiciary, by victims organisations, by justice practitioners, by our courts and our police and, most importantly, by victims.

This afternoon, I will present a series of amendments that I think deal with some of the deficiencies that exist in the bill even at this late stage. Indeed, I would go as far as to say that, when the bill was published, we spent far too long talking about improving the experience of the accused or the offender rather than that of victims and complainers. I sought to redress that imbalance at stage 2, and I will do the same today at stage 3. I do not think that we can vote for amendments that change our bail system and that will put families or victims at any greater risk than they are currently at. The onus is on all of us as members to look considerately at the amendments before us. We should reflect not on the source of the amendments but on their content. I make that ask of all members.

I have worked extremely closely with Victim Support Scotland, which will feature often in my comments today, in drafting my amendments. I am really grateful for its support and for its backing for most of my amendments.

I turn to my first set of amendments. Amendment 19 seeks to add a provision to the bill that would allow the complainer, if they wanted to, to make representations to the court during the bail hearing on how they would be impacted if the accused person was granted or refused bail. Members should note that I took care to use the word “may” rather than the word “must” in the amendment. I absolutely do not want complainers in such scenarios to feel forced, or to be forced, to make representations when they would not be comfortable doing so or when it would not be relevant for them to do so. Amendment 19 would not force them to do that.

I also wanted to ensure that the wording of amendment 19 was broad through the use of the word “representations”. Those members who have been to a busy custody court will know that the judge has to weigh up whether to remand an individual in custody in the immediacy of that environment using the information that has been presented to them during that hearing. Much of part 1 of the bill goes some way in allowing criminal justice social work and other relevant parties to make greater representations to the judge on the day on behalf of the accused, presumably with a view to informing their decision so that they make the best decision possible. I do not have a problem with that, but I ask that the same privilege be afforded to the complainer or the complainer’s representative in such instances, because both voices must be heard.

Some victims organisations said that, although they agreed that that might be a helpful provision in most cases, they were concerned that victims of domestic abuse, for example, could be coerced into making representations to the court that did not accurately reflect their circumstances. I share that concern, which is why amendment 19 is an enabling one that simply creates a mechanism by which the complainer—if, and only if, they want to—can ensure that the court is in full possession of all the relevant information about the case that is before it. I think that that is vital, but I am willing to hear what the cabinet secretary has to say in response to my well-meaning amendment.

If amendment 19 is problematic, I ask the chamber to consider amendment 20, which seeks to amend the 1995 act by including a clause that states that a submission by the Crown must include

“information in relation to the complainer’s safety or safety of other persons”.

It also states that that information could be obtained from a wide range of sources, including a victims advocacy or support organisation. For me, consideration of the complainer’s safety should be the top priority in such deliberations. Therefore, I am delighted that Victim Support Scotland, Scottish Women’s Aid and ASSIST have urged members to support amendment 20.

I turn to the other amendments in the group, which other members have spoken to. I am very happy to support amendment 67, in the name of Pauline McNeill. Similarly, we will support amendment 68, in the name of Katy Clark. I am also happy to support Maggie Chapman’s amendments 15 and 21, which would allow the court to request information from the Crown on the risk of harm to the victim.

I had a problem with amendment 16, albeit that Maggie Chapman described it as a technical amendment, which, in my interpretation of it, at least, would allow the prosecution and the defence to give an opinion to the court on the risk of something occurring, as mentioned in the bail test. Amendment 16 does not have the backing of VSS or other victims organisations, much to my surprise, but I will trust their judgment on that.

Angela Constance (Scottish National Party, Almond Valley)

I will speak to all the amendments in the group.

Amendment 67, from Pauline McNeill, seeks to remove the mandatory requirement for the court to provide an opportunity for justice social work to provide information relevant to the question of bail and, instead, make that discretionary. An identical amendment was lodged by Ms McNeill at stage 2 and was fully debated by the Criminal Justice Committee.

The purpose of section 1 is to ensure that justice social work is always given an opportunity to provide information to the court. Amendment 67 would completely cut across that policy, as it would be left to the court to decide.

As was discussed at stage 2, there have been suggestions that decisions on whether to admit an accused to bail could be delayed as a result of the changes proposed in section 1. That will not happen, however, as Ms McNeill acknowledged in her remarks. Section 1 does no more than require the court to give justice social work an opportunity to provide it with information that is relevant to the question of bail.

It does not mean that justice social work has to provide information in every case, nor does it mean that the court cannot make the bail decision if information from justice social work is not provided.

If a person appears, for example, on a Monday, the bail decision must be made by the end of Tuesday—in other words, the next day. That is and will remain the legal timescale.

The court will continue to make bail decisions on the basis of the information that is put before it, whether or not justice social work has provided information. There is no risk that bail will be refused because the court is awaiting information from justice social work.

The court cannot refuse bail because it is waiting for information from any party.

Amendment 67 would leave it to the discretion of the court whether to offer an opportunity to justice social work to provide information. There is a risk that that could mean that valuable information would not be provided in individual cases, as the court might not always be aware of whether criminal justice social work held relevant information, because it had not asked justice social work.

I ask Pauline McNeill not to press amendment 67. If she does, I ask members to vote against it.

The Scottish Government supports amendments 15, 16 and 21, from Maggie Chapman, which respond to some of the issues raised at stage 2 by the Scottish Liberal Democrats. As Ms Chapman has set out, under existing bail law, at any time when the question of bail is being considered, the court has a general power to seek further information that is relevant to the bail decision from the prosecutor or the accused’s legal representative. The bill seeks to extend that power to include justice social work.

Sitting alongside that general power, amendment 15 expressly enables the court to ask the prosecutor for additional information in relation to victim safety, to help inform the bail decision. That highlights to the court the importance of the victim safety aspect of the new bail test and that it is primarily the role of the prosecutor, who acts in the public interest, to provide the court with information about any perceived risks of harm that the accused poses to the complainer that would be relevant to the court’s decision on whether to grant the accused bail.

I am aware that, throughout scrutiny of the bill, ensuring that the court has the best information to inform its bail decision has been a key issue. Amendment 15 acknowledges the important position of the prosecutor in that regard and is a sensible and helpful provision that will aid the operation of the new bail test, including consideration of victim safety, which is at its heart.

Amendments 16 and 21 are consequential amendments.

Katy Clark’s amendment 68 would require the Scottish ministers to report to Parliament on the operation of section 1 during its first year in force. The amendment is identical to the one that Ms Clark lodged at stage 2, which was fully debated by the Criminal Justice Committee.

I very much recognise that the enhanced role of justice social work through section 1 carries resource implications, as set out in the financial memorandum. It is important to remember, though, that the bill simply requires the court to give justice social work an opportunity to provide information that is relevant to the question of bail in each case before the court.

It does not place any duty on justice social work to provide such information. Ultimately, it will be for justice social work to identify the cases in which it can best help to inform the court’s decision making by providing additional information.

Throughout the passage of the bill, I have made it clear that the Scottish Government will continue to work with justice agencies during implementation planning to review the resourcing requirements and the timescales for commencement.

Members will be well aware, as we all are, of the real challenges that exist in relation to budgets across Government and across the country, and that those are likely to continue. However, I remain close to the issue, and I contend that the ring fencing of criminal justice social work has certainly given it a stability notwithstanding those pressures.

Of course, the Parliament has the power to carry out post-legislative scrutiny of any act of Parliament. It may also choose to scrutinise particular provisions of an act. The Parliament also requires to pass the Government’s annual budget bill, and so elements of the justice budget, including that of justice social work, can be looked at through that process. Accordingly, the Parliament would be able to consider the impact of the bail reforms on justice social work through those scrutiny processes without having to add a further reporting requirement to the bill to allow for that.

I ask members to vote against amendment 68.

Amendment 19, in the name of Jamie Greene, would give the complainer the right to make representations to the court when it is determining whether to grant or refuse bail.

The subject of how the court is best informed about the potential risks to complainer safety is a key issue that was, quite rightly, discussed in some detail at stage 2. With the new bail test explicitly embedding public and complainer safety within its operation, it is clearly important that the court has appropriate information to assess that.

Amendment 15, which is being considered in this group, emphasises to the court the route by which information on complainer safety should be obtained: it is from the prosecutor. As was discussed at stage 2, I would have concerns about placing in the bill any requirement or expectation that a complainer should appear in front of the court. I know that that is not Mr Greene’s intention.

It is clearly important in many cases, such as those involving domestic abuse, that information on potential harm is made known to the court, but that should be done via the prosecutor, and amendment 15 helps to strengthen the law in that regard.

Jamie Greene (Conservative, West Scotland)

I am grateful to the cabinet secretary for explaining the Government’s position. However, I pose the scenario of a busy custody court. I do not understand how the situation would be best addressed there. On the day, Crown counsel would probably be presenting a large number of cases to the judge. Amendment 15 says:

“the court may ... request the prosecutor to provide it with information in relation to the risk of harm”.

How is that practically achievable in a scenario in which neither the complainer nor their representative is in court on the day? The advocate depute would have no access to such information, particularly if the arrest has been made in the course of a weekend, as is often the case in domestic abuse cases.

Why is it such a problem to allow the complainer to provide such information to the court—potentially in advance—so that it can be heard by the judge on the day? The process that is outlined in amendment 15 alone would not suffice in every scenario, and it certainly would not give every complainer the opportunity to make representations to the court.

Angela Constance (Scottish National Party, Almond Valley)

The whole purpose of section 1 of the bill is to ensure that the court has the best possible information available to it. Notwithstanding that prosecutors are busy—as are judges, criminal justice social workers and victim support organisations—we are well within our rights to be crystal clear on the role of the prosecutor in providing vital victim information where it exists.

I put another scenario to Mr Greene. Although I am sure that it is not his intention, my worry is that amendment 19 might have unintended consequences and carry an increased risk of harm if a complainer were to make representations at court in person. It might increase the risk to their safety or that of their being coerced into making representations to help to secure an accused person’s release on bail.

Therefore although I accept that amendment 19 is well intentioned, it is not one that the Government can support.

Amendment 20 from Jamie Greene would place a mandatory requirement on the prosecutor to always include information on the safety of the complainer or other persons in their bail submission. Where such information is relevant to the question of bail, the prosecutor will of course provide such information. However, to require it in every case—even when, for example, there is no complainer or where there is no question of complainer safety being an issue, such as may be the case in a shoplifting case—is a step too far.

In addition, amendment 20 would require the prosecutor to include information on complainer safety obtained from a victim advocacy or a victim support group. Again, I understand the intent, but if there is no complainer, or if the complainer has no wish to engage with such a group, the prosecutor would still require to include such information, even where clearly it is not relevant or where it is not available from the victim group.

It is for the independent prosecutor, who acts in the public interest, to ensure that relevant information is presented to the court in relation to complainer safety, and amendment 15 strengthens the law appropriately in that regard.

There are also some technical issues with amendments 19 and 20. For example, there is no definition of a “victim support or advocacy group,” which is referred to in amendment 20. Given that the amendment imposes a new duty on the Crown in connection with court decisions on bail, it is important that there is legal certainty.

On that basis, I ask members to oppose amendments 19 and 20.

Pauline McNeill (Labour, Glasgow)

I agree with the cabinet secretary that the principle of providing the maximum amount of information to the court is very important, but I do not think that the Government addressed the question of the inequality of resources across the country. In fact, I argue that it is a meaningless mandatory requirement to provide an opportunity, and in some courts that is just not possible.

Although the cabinet secretary said that resources can be considered, what she said in relation to Katy Clark’s amendment seems to leave that question totally unanswered. If no social work is available in some courts, the opportunity will simply not be taken up, and that creates inequality, so it becomes a bit meaningless, and it makes more sense to change the “must” requirement in legislative terms.

With that, I will be supporting amendment 20, in the name of Jamie Greene, but not amendment 19, because there was not enough technical information. There is quite a lot to be considered around how this will be done before the court. I will support amendment 15, in the name of Maggie Chapman, but not amendments 16 or 21.

The Deputy Presiding Officer

The question is, that amendment 67 be agreed to. Are we agreed?

Members

No.

The Deputy Presiding Officer

There will be a division. As this is the first division of the day, I will suspend the meeting for around five minutes to allow members to access the digital voting system.

15:23 Meeting suspended.

15:28 On resuming—

We will now restart proceedings, and we will proceed with the division on amendment 67. Members should cast their votes now.

The vote is now closed.

Brian Whittle (Conservative, South Scotland)

On a point of order, Presiding Officer. My app would not connect, but I would have voted yes.

The Deputy Presiding Officer

Thank you, Mr Whittle; that will be recorded.

Neil Bibby (Labour, West Scotland)

On a point of order, Presiding Officer. I could not connect but would have voted yes.

The Deputy Presiding Officer

Thank you, Mr Bibby; your vote will be recorded.

The Deputy Presiding Officer

The result of the division is: For 46, Against 66, Abstentions 0.

Amendment 67 disagreed to.

Amendment 15 moved—[Maggie Chapman]—and agreed to.

Amendment 16 moved—[Maggie Chapman].

The question is, that amendment 16 be agreed to. Are we agreed?

Members

No.

The Deputy Presiding Officer

There will be a division.

The vote is now closed.

Graeme Dey (Scottish National Party, Angus South)

On a point of order, Presiding Officer. My device would not work. I would have voted yes.

The Deputy Presiding Officer

Thank you, Mr Dey. Your vote will be recorded.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

On a point of order, Presiding Officer. My app did not work. I would have voted no.

The Deputy Presiding Officer

Thank you, Ms Hamilton. Your vote will be recorded.

The Deputy Presiding Officer

The result of the division is: For 67, Against 47, Abstentions 0.

Amendment 16 agreed to.

I call amendment 68, in the name of Katy Clark, which has already been debated with amendment 67. I invite Katy Clark to move or not move the amendment.

Katy (Labour, West Scotland)

I move amendment 68, which has the support of organisations such as the Convention of Scottish Local Authorities. The provision of justice social work and the cuts to justice social work budgets need greater scrutiny, and I therefore urge members to support the amendment.

The Deputy Presiding Officer

Thank you, Ms Clark. We do not need that; we just need the moving of the amendment.

The question is, that amendment 68 be agreed to. Are we agreed?

Members

No.

The Deputy Presiding Officer

There will be a division.

The vote is now closed.

Jamie Hepburn (Scottish National Party, Cumbernauld and Kilsyth)

On a point of order, Presiding Officer. I cannot tell whether the vote went through. I would have voted no.

The Deputy Presiding Officer

I confirm that your vote was recorded.

Colin Smyth (Labour, South Scotland)

On a point of order, Presiding Officer. My device did not work, but I would have voted yes.

The Deputy Presiding Officer

Thank you, Mr Smyth. Your vote will be recorded.

The Deputy Presiding Officer

The result of the division is: For 51, Against 63, Abstentions 0.

Amendment 68 disagreed to.

Group 2 deals with entitlement to bail. I draw members’ attention to the procedural information relating to this group, as set out in the groupings. If amendment 22 is agreed to, I cannot call amendments 69 to 71, due to a pre-emption.

Amendment 17, in the name of Jamie Greene, is grouped with amendments 18, 22, 69 to 72, 23 and 74.

Jamie Greene (Conservative, West Scotland)

I apologise to Labour for the pre-emptions in this group—I will explain those shortly.

Amendments 22 and 23 in this group are largely consequential on the primary amendment, which is amendment 17. I apologise to members for the fact that the speech that I am giving just now is the main one that I will give today, from my point of view, because it relates to the bail test, which is the core of part 1 of the bill.

Whether we like it or not and whatever our views on Governments using primary legislation to restrict parameters around the independent decision making of the judiciary, the effect of this section has caused debate and consternation. I would go as far as saying that it has attracted, perhaps unusually, widespread criticism from the judiciary and, at the other end of the spectrum, those who represent victims and their rights.

As currently drafted, the bill limits the scope of the court’s ability to refuse an individual bail. At the moment, as per the Criminal Procedure (Scotland) Act 1995, judges have a list of criteria that they use to determine whether someone should be remanded or granted bail. The Government’s proposals in the bill change all of that. The proposed bail test requires that bail must be refused only if both of the following tests are met. The first is that the court deems that the case involves at least one of the criteria that are set out in section 23C of the 1995 act, including, for example, things such as the likelihood of absconding, the risk of further offences being committed if bail is granted and the risk of the person interfering with witnesses or otherwise obstructing the course of justice—all sensible things that we would expect judges to consider. The second test is that the court must be satisfied that the accused should be refused bail

“in the interests of public safety … or ... to prevent a significant risk of prejudice to the interests of justice.”

It is no longer an “or” scenario; it is an “and” scenario. That is an important difference—it is the so-called two-stage test that we have been referring to throughout this scrutiny process. Here is the problem with that: questions have been posed by the judiciary about the properness of such a move by a Government. There is a fundamental question here about how ministers who frequently rest on their laurels in relation to the so-called independence of the judiciary when posed questions about such matters are very quick and keen to legislate to narrow the decision-making powers of the judiciary.

There are a range of views on the efficacy of the change in its entirety. Some stakeholders seem to hint that judges will just ignore it altogether, doing what they always do, making the sort of decisions that they think are right and that they always make anyway. In fact, Lord Carloway stated that the bill

“introduces an unnecessary cumbersome and artificial process”

without changing outcomes in bail decision making. That is extremely strong criticism from the highest judge in the land of the proposed changes to the bail test, and we ignore it at our peril.

There was also a huge amount of debate about what constitutes the second test: the new public safety test. Some argued that it was too narrow—that it would effectively bind the hands of judges and severely limit their use of remand even where that option may be appropriate. There were substantive arguments about how, or even whether, to define “public safety” and what effect that will have in practice on remand decisions and remand numbers.

What is the compromise here? There has, so far, been no answer on that from the Government, yet the committee’s stage 1 report said:

“the factors that judges need to take into account would be preferable on the face of the bill.”

At stage 2, I lodged a simple amendment that sought to change the “and” in the test process to an “or”, thereby allowing judges more scope to remand individuals who they believe pose a risk to the complainer or to other individuals. That amendment was rejected by the Government, notably on a 4:4 split and the casting hand of the convener. The Parliament, the judiciary and victims organisations are split on the issue. That is why I have brought the amendment back at stage 3.

Amendment 17, in my name, again seeks to replace the “and” in the two-stage process but instead inserts five conditions as reasons for which a judge could remand someone. It would provide that, in addition to the so-called public safety test,

“at least one of the following”

criteria must also be met:

“(i) the … person is likely to breach … bail conditions,

(ii) the … person is likely to commit further offences whilst on bail,

(iii) the … person is likely to abscond”

from court;

“(iv) the … person … is likely to interfere with witnesses or … obstruct the course of justice”;

and finally, in subparagraph (v), the court feels that

“there is another substantial factor”

that would justify

“keeping the person in custody”.

The fundamental question, which the Government has been either unable or unwilling to answer throughout the bill process, is what is driving the remand population in our prisons in the first place. It must be a number of any of the following factors. Is it a result of the overuse, or the wrong use, of the existing bail test by sheriffs or judges? That is a key question, but we saw no evidence of that.

Is it, perhaps, a result of the huge backlog in our courts, which is driving up the remand population, with many people lingering in prison for months—or, in some cases, years—while their trials are continually delayed? We have evidence for that, because Audit Scotland recently revealed that our backlog for solemn cases will not be cleared until at least March 2026, some three years away. Someone who is held on remand will be waiting for their trial, and therefore the remand numbers will be higher.

Another question that it is right to pose is whether we have a comparatively high remand population relative to the types of crimes for which those people are being remanded. What do I mean by that? What is the proportion of people who are remanded, for example, for serious assault, attempted murder, sexual assault, rape or serious organised crime? My point is this: is it the profile of crime that has changed and resulted in the inevitable action of a judge having to, or feeling that they have to, remand someone?

The Criminal Justice Committee struggled with those questions to get below the skin of the issue. As far as I can see, remand is already the option of last resort by sheriffs and judges, which is perhaps why 8 per cent of custody hearings in summary cases result in remand, and 40 per cent of solemn cases result in remand, largely due to the seriousness of those cases.

If the system is not broken, why change the bail test? That is not just the question from members on the Conservative benches but a question that the judiciary are asking the Government, to which the Government has not replied.

Pauline McNeill (Labour, Glasgow)

I appreciate the member giving way on that point in particular, given that he mentioned the Lord President’s 13-page letter. With regard to the change not having the confidence of the judiciary, would he acknowledge that we put to both cabinet secretaries the very question that, as he says, the judiciary highlighted, as to whether the proposed changes may make no “

practical difference”

to outcomes? Would he agree that the committee did not really get an answer to a 13-page letter that was full of substantial questions?

Jamie Greene (Conservative, West Scotland)

No, we did not, and—disappointingly—neither did the judiciary come and give evidence to us. I would have liked to have heard from judges and sheriffs in front of the committee at stage 1, as we gathered evidence for our stage 1 report. Nonetheless, they produced—unusually—a 13-page letter, which we cannot ignore. It is not often that the most senior judge in Scotland would criticise such a change to the law in such a way, but the Government has not replied. The Government may disagree with Lord Carloway, which is fine—there is nothing wrong with the cabinet secretary and the Government having a different policy direction—but it was not forthcoming with an answer to that letter. I do not think that we should ignore those concerns.

Pauline McNeill is absolutely right. The problem here is about what effect the bail test change will have on the remand population, and the answer is that we do not know. It could go a number of ways. The remand population could stay the same, because judges will still use their own judgment, and the bail test will make no difference, in which case the policy objective will have failed at the first hurdle and is therefore unnecessary. The other option is that more people are released into the community who would hitherto have been remanded in custody. That may present a problem, and that is perhaps why victims organisations have a problem with it. The opposite outcome is that the definition of “public safety” could be so wide ranging that it could be used in any scenario to remand someone in custody, and therefore more people may end up being remanded.

We have heard all the scenarios, and the Government does not seem to know what the outcome might be, nor has it done any modelling on it. That is my concern, and that is why I am seeking to insert the original bail test back into the bill, so that we are clear about the parameters that judges can use. The public safety test is so vague, so weak and so misunderstood; the original five-condition test is clear, and it is being used by judges—fairly, in my view. I am not sure whether the Government trusts judges on this matter; I perhaps have more faith in them, and I urge members to support my amendments in this group.

I turn briefly to other amendments in this important group. I support amendment 18, in the name of the cabinet secretary, because it changes the wording of the public safety test in some way to consider the protection of the complainer from the risk of harm. That seems to be a technical change from what was proposed at stage 2, which is welcome.

Amendments 69 and 70, from Pauline McNeill, add to the bail test the ability for judges to refuse bail on the basis that the person has previously breached their bail conditions, for instance. That is not in the existing tests as set out in the Criminal Procedure (Scotland) Act 1995.

Amendment 71 adds to the existing bail test a provision that allows bail to be refused if the court considers that there is a substantial risk that a person, if granted bail, might breach bail conditions. Amendment 70 does something similar.

Those amendments are important because, as we know—and as I will discuss in relation to a different group of amendments—a high volume of prisoners breach bail conditions. Many people who are released on bail are repeated bail breachers, and the effect on victims, particularly on domestic abuse victims, is quite horrific. We have had first-hand evidence of that.

There are other amendments in this group that I will not speak to, but I am keen to hear what the cabinet secretary has to say in response to the many criticisms that I have laid out.

I move amendment 17.

Angela Constance (Scottish National Party, Almond Valley)

Amendment

72, in the name of Katy Clark, would remove the proposed new bail test from the bill in its entirety. A similar amendment was lodged by Ms Clark at stage 2 and was debated at the Criminal Justice Committee. I cannot support the amendment.

Part 1 of the bill does not change the general entitlement to bail under section 23B of the Criminal Procedure (Scotland) Act 1995. Under the new bail test, as is the case now, bail is to be granted to an accused person unless the court determines that there is good reason for refusing it. That determination continues to involve a two-part test.

The first part of the test remains the same. The court may determine that there is good reason for refusing bail only where at least one of the grounds in section 23C(1) of the 1995 act applies. The bill narrows the second part of the test to provide that bail may be refused only if the court considers it necessary for one or two specific public interest reasons. The first is that it is necessary in the interests of public and victim safety. The second is that it is necessary to prevent a significant risk of prejudice to the interests of justice. If an accused person does not present a threat to public and victim safety or to the delivery of justice, bail should be the default.

The new statutory limit on the use of remand is a direct response to calls made by the Criminal Justice Committee and others to take action to reduce the number of people being held on remand. If Katy Clark’s amendment 72 is agreed to, the potential benefit of the new bail test in reducing the use of remand would be lost. I ask members to vote against that amendment.

Amendments 17, 22 and 23, in the name of Jamie Greene, would expand the circumstances in which remand can be used by the court not only under the framework that is envisaged by the new bail test in section 2 of the bill, but even in terms of the current system.

It is, of course, the job of Parliament to set legal parameters. The Scottish Government is seeking to do so in this instance via primary legislation. Mr Greene and others are also seeking to do so via their amendments. However, Mr Greene’s amendments would represent a significant change in the operation of bail law, and no consultation has been undertaken on the specific changes that he has proposed.

Amendment 17 is the main amendment; amendments 22 and 23 are largely consequential. Jamie Greene lodged a similar amendment at stage 2, and it was debated and defeated. Amendment 17 would separate the two requirements of the new bail test to make them alternative instead of cumulative. That would mean that the court could remand an accused person either when one or more of the grounds that are listed in Jamie Greene’s amendment 17 are established or when there is a risk to public safety or a significant risk of prejudice to the interests of justice.

The current bail test and the new bail test are two-part tests. By removing the need to satisfy both parts of the test, the change has the potential to massively expand the court’s ability to remand and to massively expand the legal parameters. It would mean that an accused person who poses no risk to public safety or to the delivery of justice could be remanded solely on the basis that at least one of the grounds that are listed in amendment 17 applies. That includes any other

“substantial factor which appears to the court to justify keeping the person in custody”.

That would give the court an extremely broad discretion to refuse bail for any reason that the court determined met the criterion of being a “substantial factor”.

Jamie Greene (Conservative, West Scotland)

The point of the amendment is precisely to give the courts that discretion. The factors that are listed in my amendment are reasonable grounds. The problem is that, if someone meets all those criteria—there is evidence of their breaching bail conditions; they had previously been released on bail and committed further offences, of which there is evidence; and they have repeatedly absconded or failed to attend at a court diet—but does not meet the secondary test, the judge will be forced, again, to release that person on bail. Where is the discretion and the fairness in that? All that I am trying to do is reinsert into the system that the judges on the day—not ministers here today—are the best people to make that decision.

Angela Constance (Scottish National Party, Almond Valley)

I will come to embedding the important principles of the interests of justice and victim and public safety in a few moments.

The fundamental point is that Mr Greene, here today, at stage 3, is proposing to massively expand the court’s ability to remand, and that is a proposition on which he has not consulted. He might disagree with the Government’s proposal to narrow the statutory limits on remand, but we have at least consulted thoroughly and debated that matter thoroughly at stage 1, stage 2, and now at stage 3.

Mr Greene’s amendment 17 would remove from the new bail test the requirement for at least one of the grounds that are specified in section 23C(1) of the Criminal Procedure (Scotland) 1995 to apply in order to justify refusal of bail and would replace it with a new set of grounds. Although the replacement grounds in amendment 17 are broadly similar to the grounds in section 23C(1), a different threshold is set for when each of the grounds applies, moving from “substantial risk” to “likely”. Exactly what the intent is in changing the threshold from “substantial risk” to “likely” is not immediately clear. If there had been earlier scrutiny of that change in wording, it could have been considered. However, I contend that stage 3 of an important bill is not the time to adjust a part of bail law that has not been fully considered.

Amendment 22 is largely consequential, but not insignificant. That is because, although section 23C(1) of the 1995 act has largely been replicated in amendment 17, section 23C(2) has not been. Repealing section 23C would mean that the court would no longer be required to have regard to important factors that are set out in section 23C(2) when making the bail decision, including the nature and level of seriousness of the offences before the court, and the character and antecedents of the accused person, including, in particular, their previous convictions. Exactly why the court should not have regard to those long-standing factors is unclear, and, in my view, not to allow it to do so is unwise. Therefore, I ask members to vote against amendments 17, 22 and 23.

Amendments 69 to 71, in the name of Pauline McNeill, would make changes to section 23C(1) of the Criminal Procedure (Scotland) Act 1995. The effect of those amendments would be to add two new grounds to the list in section 23C(1) so that the court may cite one of those grounds as part of a determination to refuse bail. The two new grounds would be where

“the person has previously breached bail conditions”

or there is

“any substantial risk that the person might, if granted bail, breach bail conditions”.

Although they are well intentioned, those amendments are not necessary. I will explain why.

First, the breach of bail conditions is a separate criminal offence in its own right, and any substantial risk that an accused person might, if released on bail, breach bail conditions is already covered by the existing ground for refusal of bail set out in section 23C(1)(b). Amendment 70 is, therefore, not necessary and already covered by existing bail law, which the bill does not change.

Secondly, existing section 23C(2) already instructs the court, when considering the grounds upon which bail may be refused, to have regard to all material considerations, which include whether the person was subject to a bail order when the offences are alleged to have been committed, and the character and antecedents of the person, including the nature of any previous convictions. That means that the court is already required to have regard to whether a person has previously breached any conditions of bail when deciding whether there is good reason to refuse bail in a given case, so amendment 71 is not necessary.

Therefore, I ask Pauline McNeill not to move amendments 69 to 71. If she does so, I ask members to vote against them.

Katy Clark’s amendment 74 would remove section 4 from the bill in its entirety, with the effect that the duties contained in it for the court to state certain reasons for its decisions on bail and record its reasons when bail is refused would not be introduced. Again, an identical amendment was extensively debated by the Criminal Justice Committee at stage 2, although it was not pressed to a vote.

Amendment 74 may be a consequential change to amendment 72, but section 4 has its own specific policy reasoning. The removal of section 4 would directly contradict the committee’s stage 1 report recommendation that more information be collected about the reasons why remand is used. The importance of collecting more detailed data on the use of remand was universally supported by people who gave evidence to the committee at stage 1.

I understand that concerns were expressed at stage 1 about the potential burden that the recording duty as originally drafted would place on the courts, but the bill was amended at stage 2 to reduce the amount of information that the courts would be required to record and to focus it more clearly on only the reasons why the court decided to remand the accused. It is that key set of information that we consider will be most useful in the coming years to understand the reasons why remand is imposed.

Therefore, I ask Ms Clark not to press amendment 74. If she does so, I ask members to vote against it.

Finally, my amendment 18 is a minor and technical amendment to the new bail test that section 2(2)(a) of the bill will introduce. It revises the limb of the new bail test that deals with public and victim safety, so that the court may refuse bail if it considers it necessary to do so in the interests of public safety, including for the

“protection of the complainer from a risk of harm”.

That is a slight change from the original wording of the provision, which provided that the court may refuse bail if it considers it necessary to do so

“in the interests of public safety, including the safety of the complainer from harm”.

That minor revision does not change how that aspect of the bill test operates; it simply reflects that it is more natural to talk about protecting the complainer from a risk of harm. For that reason, I ask members to support amendment 18.

Pauline McNeill (Labour, Glasgow)

I will start with a similar point to the one that Jamie Greene made. In some senses, the debate that we are having now is about the heart of part 1 of the bill. The basis of the discussion is that we have the bail test under the 1995 act, and the bill has a completely new bail test. I have to say from the outset that I do not envy the cabinet secretary in taking on the bill halfway through the process, but I say in all genuineness that I am trying to get to the bottom of the real purpose of the bill.

I noted down a phrase that the cabinet secretary used that I have not heard before. She talked about a

“new statutory limit on the use of remand”.

The Government has to be consistent so that people understand what the bill is attempting to do. For those who have not been involved in the scrutiny of the bill, I point out that it is a highly complex and technical piece of legislation. I do not pretend to understand it all, but I am trying to get clarity on the purpose of the new bail test. The reason why I mention that phrase that I had not heard before is that the committee, in its entirety, raised concerns about the extent of the use of remand and, every time we asked whether the purpose of the bill is to reduce the remand population, we could not really get a clear answer. The Government needs to be clear about whether or not that is the purpose of the test.

I will move on to the test itself—Jamie Greene made the same points that I am about to make. In the 13-page letter that I referred to earlier, the judiciary seemed to say that it has issues with the new test and is not convinced that it will make any real practical difference. That is a problem in legislation. The bill will introduce a new test, which the cabinet secretary has outlined very well, but it is unclear whether it will actually make any difference. Furthermore, it could be complex for people to understand.

In amendments 69 to 71, I am trying to do something similar to what I think Jamie Greene is attempting to do, by putting some prescription back in the test to get clarity. One of the first comments that was made to me about the bill was that the bail test does not have as a specific consideration whether someone has previously breached their bail. I know that it is not in Jamie Greene’s amendment 17, and that his amendment also introduces a slightly different test in that, where my amendment 71 references “substantial risk”, Jamie Greene talks about the “likelihood” of bail being breached. Those are important aspects.

Section 2 seeks to change the grounds on which a court may decide to refuse bail, and amendments 69 to 71 would allow consideration of the risk of breach of bail. The Scottish Government has said that the amendments are not necessary, and I accept that it has been said that, under the new test, the court will be able to consider whether there is substantial risk. However, my preference is to make it clear in the bill that, in fact, breach of bail is a ground for refusing bail.

The Law Society of Scotland said that a

“one-size-fits-all ... solution ... does not really assist the court to make proper judgments as to who could or could not be trusted with being admitted to bail”.—[

Official Report, Criminal Justice Committee,

18 January 2023; c 19.]

It said that, although the Government is seeking to introduce a more focused use of remand, it must be careful that a recalcitrant offender is not continuously released on bail without any consideration of the rights of the general public.

The Scottish Government’s written response at stage 1 stated:

“The new bail test in the Bill is intended to refocus how imprisonment is used to ensure that, as much as possible, the use of custody for remand is a last resort”.

However, it is important to note that that is already the case under the 1995 act, where there is a presumption against the use of remand. Again, I am seeking clarity about the purpose of the bill.

The policy memorandum explains that the purpose of the provisions is

“to refocus the legal framework within which bail decisions are made by a criminal court, so that the use of custody is limited to those accused persons who pose a risk to public safety, which includes victim safety, or to when it is necessary to prevent a significant risk of prejudice to the interests of justice in a given case.”

Given the phrasing there, it is important that the language of the new test is quite different from that in the 1995 act and that we all understand exactly what the bill is intended to do.

It concerns me deeply that the provision in that part of the bill does not yet appear to have the full confidence of the legal profession and the judiciary. I admit that the letter was written some time ago, but we have not had an update since then, and I asked the question. It would be helpful at some point to have an update on whether any changes that have been made to the provision now have the confidence of the judiciary.

Katy (Labour, West Scotland)

Amendments 72 and 74 would remove sections 2 and 4 from the bill. That would, in essence, maintain the current bail test, which in the vast majority of cases includes a presumption that the court will grant bail. The approach that I am taking is similar but slightly different to that proposed by Jamie Greene.

Scotland has the highest number of people in prison and the highest remand rate in Europe. The figures that were provided to the Criminal Justice Committee show that almost 30 per cent of the male prison population is on remand and that, in the women’s estate, 37 per cent of women are remand prisoners. It has to be said that that is not because Scotland is a more violent country than comparable countries. Our contention is that those high remand rates are not because of the law or the bail test that we are discussing, but because of a lack of robust alternatives to custody being available to the courts. In addition, it is clear that decisions of Parliament to extend the time limits relating to criminal cases and, perhaps, culture might be other reasons. The pandemic clearly increased the number of people who are being held on remand, but Scotland having extremely high remand figures is a historic issue.

The Criminal Justice Committee first discussed the bill at our away day last August, and although we have taken extensive evidence since then, we have been unable to find evidence about how changing the bail test from a public interest test to a public safety test will reduce the number of people being remanded. The current test has been in place for many decades and is settled law. What the Scottish Government is proposing

“is likely to make submissions to the local sheriffs lengthier, increase the time taken to determine the issue of bail, result in some accused persons being detained unnecessarily while inquiries are carried out, produce more errors, increase the opportunities for appeals and add to the heavy burden on the sheriffs and the staff who are tasked with the management of what can be extremely busy custody courts.”

Those are not my words but the words of Scotland’s senior judge, Lord Carloway, in his submission to the Scottish Government on behalf of judges.

Pauline McNeill and I have spoken to dozens of practising lawyers about the proposed new bail test and it is clear that what the Scottish Government is proposing does not have the support of victims’ organisations, it does not seem to have the support of the judges and, from the discussions that we have had and the evidence that we have taken, it does not seem to have the support of the legal profession. Pauline McNeill and Jamie Greene have also referred to the submission that I have just referred to, which said clearly that the proposed new bail test introduces

“an unnecessary, cumbersome and artificial process”,

and that it is

“difficult to see how the proposed new structure will make any practical difference in outcomes.”

When we are scrutinising the bill, we need to look at whether the law will make it easier for the courts to make decisions and make the law more certain. It is far from clear how the Scottish Government believes that changing the bail test in the proposed way will either reduce the remand population or, indeed, make it clearer to the courts what Parliament intends.

We believe that, instead, the focus should be on developing more robust forms of supervised bail and electronic monitoring.

As the cabinet secretary said, amendment 74 is consequential to amendment 72. It seeks to remove section 4 of the bill. During the Criminal Justice Committee’s evidence taking on the bill, section 4 was opposed by victims’ organisations, as it fails to provide complainers with an explanation of why bail is being granted. In addition, as we heard already, many parts of the legal profession are opposed to the proposals that are outlined in section 4. We believe that section 4 is unnecessarily onerous and that it would extend the length of hearings.

On those bases, I urge the chamber to support my amendments.

Jamie Greene (Conservative, West Scotland)

I thank all members for their contributions. The debate on this group has been a long one, but it is an important one. As Pauline McNeill said, it gets to the heart of what the bill is trying to do and what the Criminal Justice Committee has spent many months trying to unearth.

I have a number of brief comments to make in response to the cabinet secretary and other members. It is still entirely unclear, even as we come to the end of stage 3 consideration of section 2, what the Government’s real intention is. The Government has not been up front about that at any stage in the proceedings. Today, it has been given ample opportunity to be clear about its intention to members, who must vote on the amendments. Is it simply the Government’s intention that making the proposed change to the bail test will result in a reduction in the number of people who are remanded in custody? It is clear that that is what lies at the heart of the proposal. If that is the policy intention, the Government should say so. There is no point in hiding behind the idea of modernisation or change for change’s sake.

It is clear that the Government has not listened to any of the criticisms that have been made, not by politicians here today or at stage 2, but by the people out there who reflected on and reacted to the publication of the bill.

Angela Constance (Scottish National Party, Almond Valley)

Will Jamie Greene give way?

Jamie Greene (Conservative, West Scotland)

I will shortly. I want to pose a question to the cabinet secretary.

Of the proposed change, the Lord President said:

“It is difficult to see how the proposed new structure will make any practical difference in outcomes.”

I will stop the quote there and carry on in a second. Surely that is the whole point of what the Government is trying to do—to make a practical difference to outcomes—but the Lord President does not seem to think that the new structure will do that.

The Lord President went on to say:

“The overarching test, that bail is to be granted unless there is a good reason to refuse it, remains the same.”

The problem is that that view is also shared by the Crown; it is not simply the view of the judiciary—judges—or defence advocates and solicitors. In its evidence to the committee, the Crown Office and Procurator Fiscal Service said:

“Different sheriff courts or, indeed, different sheriffs in the same court might take a different view of what public safety encompasses ... The issue for me is that sheriffs could broaden the definition of ‘public safety’ for other crimes in some jurisdictions and not in others. That would lead to inconsistency, confusion and, ultimately, inefficiency.”—[

Official Report, Criminal Justice Committee

, 25 January 2023; c 24, 27.]

“Inconsistency”, “confusion”, “inefficiency”, “unnecessary”, “cumbersome” and “artificial” are all words that were used by the judiciary and the Crown. Why are they all so wrong and the Government so right?

Angela Constance (Scottish National Party, Almond Valley)

It is very important that members do not claim to represent the entire legal profession. Although I have come to the bill relatively late in the process, the Government has been absolutely transparent in setting out three reasons for this part of the bill.

The legal profession has welcomed the fact that we are seeking to simplify bail legislation. Perhaps Mr Greene would agree that it is imperative that we embed the focus on public safety, including victim safety, and the interests of justice, in all cases. We are seeking to place statutory limits on the use of remand in the full knowledge—I think that we are in danger of agreeing on this—that there are many measures that will reduce the remand population and that we need to look at all the solutions.

However, it is disingenuous of the Conservatives to complain to Parliament about our high remand population and then not seek to take every opportunity to take measures that could at least play a part in reducing it.

Jamie Greene (Conservative, West Scotland)

We have been really clear about how to deal with the remand population: get through the backlog and get through it more quickly. That will reduce the remand population massively, cabinet secretary, and you have the power to do that. Apologies—I should be speaking through the chair.

I am not paraphrasing anyone in anything that I have said this afternoon. I am quoting directly the words of the Lord President, Lord Carloway; the evidence of the Crown Office and Procurator Fiscal Service; and the words of Kate Wallace of Victim Support Scotland. No one has been misrepresented; they have been quoted, and there is a massive difference. I would ask the cabinet secretary to reflect on that.

Victims lie at the heart of this. The last word should go to Victim Support Scotland, which has grave concerns about the new test that the Government is introducing. It said:

“It will be a concern to the public in general and victims of crime specifically that the provisions relating to bail narrows the court’s discretion to refuse bail.”

The cabinet secretary has just reinforced that message. Kate Wallace went on:

“That is, no doubt, with the intention of reducing the prison population.”

What that tells us is that more people will be put at risk. There will be more victims of crime and more lives will be ruined. Again, no one is being misrepresented, misquoted or paraphrased. Those words are in black and white in the stage 1 report. If the cabinet secretary will not listen to us politicians, she should listen to victims.

I press amendment 17.

Liam McArthur (Liberal Democrat, Orkney Islands)

The question is, that amendment 17 be agreed to. Are we agreed?

Members

No.

The Deputy Presiding Officer

There will be a division.

The vote is closed.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

On a point of order, Presiding Officer. I would have voted yes. My app was not working.

The Deputy Presiding Officer

Thank you, Ms Hamilton. I will make sure that that is recorded.

The Deputy Presiding Officer

The result of the division is: For 47, Against 67, Abstentions 0.

Amendment 17 disagreed to.

Amendment 18 moved—[Angela Constance]—and agreed to.

Amendment 19 not moved.

Amendment 20 moved—[Jamie Greene].

The question is, that amendment 20 be agreed to. Are we agreed?

Members

No.

The Deputy Presiding Officer

There will be a division.

The vote is closed.

Finlay Carson (Conservative, Galloway and West Dumfries)

On a point of order, Presiding Officer. I was unable to connect. I would have voted yes.

The Deputy Presiding Officer

Thank you, Mr Carson. I will ensure that that is recorded.

The Deputy Presiding Officer

The

result of the division is: For 47, Against 67, Abstentions 0.

Amendment 20 disagreed to.

Amendment 21 moved—[Maggie Chapman]—and agreed to.

Amendment 22 not moved.

Amendment 69 moved—[Pauline McNeill].

The question is, that amendment 69 be agreed to. Are we agreed?

Members

No.

The Deputy Presiding Officer

T

here will be a division.

The vote is closed.

Kenneth Gibson (Scottish National Party, Cunninghame North)

On a point of order, Presiding Officer. My app would not connect to the system. I would have voted no.

The Deputy Presiding Officer

Thank you, Mr Gibson. I will ensure that that is recorded.

The Deputy Presiding Officer

The

result of the division is: For 50, Against 63, Abstentions 0.

Amendment 69 disagreed to.

Amendment 70 moved—[Pauline McNeill].

The question is, that amendment 70 be agreed to. Are we agreed?

Members

No.

The Deputy Presiding Officer

There will be a division.

The vote is closed.

Neil Bibby (Labour, West Scotland)

On a point of order, Presiding Officer. I could not connect. I would have voted yes.

The Deputy Presiding Officer

Thank you, Mr Bibby. I will make sure that that is recorded.

Paul McLennan (Scottish National Party, East Lothian)

On a point of order, Presiding Officer. My app did not connect. I would have voted no.

The Deputy Presiding Officer

Thank you, Mr McLennan. I will make sure that that is recorded.

David Torrance (Scottish National Party, Kirkcaldy)

On a point of order, Presiding Officer. I could not connect. I would have voted no.

The Deputy Presiding Officer

Thank you, Mr Torrance. I will make sure that that is recorded.

Alexander Stewart (Conservative, Mid Scotland and Fife)

On a point of order, Presiding Officer. I could not connect. I would have voted yes.

The Deputy Presiding Officer

Thank you, Mr Stewart. I will make sure that that is recorded.

The Deputy Presiding Officer

The result of the division is: For 49, Against 64, Abstentions 0.

Amendment 70 disagreed to.

Amendment 71 moved—[Pauline McNeill].

The question is, that amendment 71 be agreed to. Are we agreed?

Members

No.

The Deputy Presiding Officer

There will be a division.

The vote is closed.

Kenneth Gibson (Scottish National Party, Cunninghame North)

On a point of order, Presiding Officer. I am afraid that I could not connect to the system. I would have voted no.

The Deputy Presiding Officer

Thank you, Mr Gibson. I will make sure that that is recorded.

The Deputy Presiding Officer

The result of the division is: For 50, Against 64, Abstentions 0.

Amendment 71 disagreed to.

Amendment 72 moved—[Katy Clark].

The question is, that amendment 72 be agreed to. Are we agreed?

Members

No.

The Deputy Presiding Officer

There will be a division.

The vote is now closed.

Craig Hoy (Conservative, South Scotland)

On a point of order, Presiding Officer. My app froze—I would have voted yes.

The Deputy Presiding Officer

Thank you, Mr Hoy. I will make sure that that is recorded.

Keith Brown (Scottish National Party, Clackmannanshire and Dunblane)

On a point of order, Presiding Officer. I would have voted no.

The Deputy Presiding Officer

Thank you, Mr Brown. I will make sure that that is recorded.

Jamie Greene (Conservative, West Scotland)

On a point of order, Presiding Officer. I would have voted yes.

The Deputy Presiding Officer

Thank you, Mr Greene. I will make sure that that is recorded.

Richard Leonard (Labour, Central Scotland)

On a point of order, Presiding Officer. My app did not connect. I would have voted yes.

The Deputy Presiding Officer

Thank you, Mr Leonard. I will make sure that that is recorded.

The Deputy Presiding Officer

The result of the division is: For 47, Against 67, Abstentions 0.

Amendment 72 disagreed to.

Group 3 is on restriction on bail in certain solemn cases. Amendment 73, in the name of Pauline McNeill, is grouped with amendments 1, 27, 30 to 33, 35, 36 and 63.

Pauline McNeill (Labour, Glasgow)

Amendment 73 is on report on bail in certain solemn cases. It concerns a debate that we had at stage 2 in relation to a provision in the bill referring to section 23D of the Criminal Procedure (Scotland) Act 1995.

Amendment 73 is a similar amendment to amendment 1, which Jamie Greene will speak to. I moved a similar amendment at stage 2 and I will now go through the rationale for the amendment. Amendment 73 would remove section 3. It would also add a requirement for Scottish ministers to carry out, within 12 months of royal assent, a review of bail restrictions in solemn cases in order to consider what the effect has been of removing section 23D of the 1995 act.

Section 3 of the bill seeks to repeal section 23D of the 1995 act, which restricts the granting of bail in certain solemn cases. Section 23D provides that bail is to be granted only in exceptional cases if the accused is being prosecuted under solemn procedure—which is used in more serious cases—for a violent, sexual or domestic abuse offence and has a previous conviction under solemn procedure for any such offence, or a drug trafficking offence, which is also included within the provision.

With the repeal of section 23D, the courts would instead simply apply the general rules that we have been discussing—the new bail test or the old bail test, depending on what happens at the end of stage 3—but victims’ organisations believe that removal of section 23D from the 1995 act presents a serious risk to the safety of people, and the victims of gender-based abuse in particular. For them, retention of section 23D is a vital part of Scotland’s commitment to eradicating violence against women and girls.

The proposed grounds for refusing bail are not sufficient on their own in relation to protecting people who are affected by crime, and are an inadequate alternative to the additional safeguard that is contained in section 23D of the Criminal Procedure (Scotland) Act 1995. The Faculty of Advocates is of the same view as Sheriff Mackie, who, when speaking for the Howard League, supported removal of section 23D to allow discretion, so we can see that opinion is split on the issue. On one hand, victims think that it does one thing, and on the other hand, many practitioners are quite happy to repeal it.

I should say that the provision in section 23D of the 1995 act has a bit of a history, because it was discovered that the reference in subsection (3A)(c) to previous convictions for domestic abuse was only inserted into the 1995 act by the Domestic Abuse (Scotland) Act 2018, whereas all the other offences that I have referred to were previously mentioned in it.

Initially, my view was that the court should have discretion. As one witness said, if someone had been convicted of an offence 20 years previously, that would tie the hands of the sheriff, because they would need to apply that particular provision. However, on balance, I feel that that provision should probably be removed. I am certainly concerned that there is a difference of opinion about leaving it in or taking it out. One of the things that puzzles me is why the Government, having put the provision on domestic abuse into section 23D, would take something out that was only put in four years ago.

My suggestion is that, if we take that provision out, that should be reported on. We should, arguably, report on it anyway because of the difference in opinion about what it actually does. We need some clarity about what the impact of keeping it in or taking out would actually have.

I move amendment 73.