 A ffnugadau, Willis Iam Cymru, 34 ystafell 2017, byddai gael wedi argynChaf. Mae'n ddweud gael ddifrif wedi eu storffent. Lleon Edw Ier. Wrth gwaith, mae'n ddweud ar y ddweud ystafelledd i'ch dd impactoch yn Llyfrgell. Felly, rwy'n ei ddweud i'r teimlo i fynd i gyhoedd y Llyfrgell yng Nghymru, ac i fynd i'r Llyfrgell yng Nghymru. Ben McPherson. Fy hynny'r ddweud ei ddweud i fynd i fynd i Gwyllwr, as a registered solicitor on the role of the Scottish Solicitors. Agenda item number one is the decision on agreeing the themes for the stage one report on the offensive behaviour of football-threatening communications repeals Scotland bill in private. Are we all agreed? We are all agreed. Agenda item number two is consideration of an affirmative instrument, the criminal legal assistance, miscellaneous amendments, Scotland regulations 2017, and I welcome Minister for Community Safety and Legal Affairs and her officials, Stephen Tidy, Police Division, Eileen Grimmer, Civil Law and Legal Systems Division and Sadeith Ashraf, director of legal services with the Scottish Government. I put it in record at the very beginning here that the committee has received submissions, quite a number of submissions from various legal bodies on this instrument and the committee is extremely grateful for these submissions. This item is a chance for members to put to the minister and her officials at any point seeking clarification on the instrument before we formally dispose of it. I refer members to paper one, which is a note by the clerk, and invite the minister to make a short opening statement. Thank you, convener. I too would wish to draw members' attention to my entry in the register of interests wherein they will find that I am a member of the Law Society of Scotland. I do hold a current practicing certificate, albeit I'm not currently practicing. These regulations will ensure that legal aid continues to be available following commencement of part one of the Criminal Justice Scotland Act 2016. Part one of the act will deliver key changes to police custody processes. It will also introduce investigative liberation, changes to police liberation, post-charge questioning and the self-contained court procedures that can arise in relation to those processes. The act provides that persons in police custody will have a statutory right to a private consultation with a solicitor at any time. Those regulations ensure that this consultation is provided free to everyone in police custody. To reflect the additional considerations that may arise when dealing with a person considered vulnerable, solicitors will be paid a high rate for such consultations. The decision as to whether an individual is considered vulnerable will be for the custody officer. Investigative liberation will allow the police to release a suspect from custody with conditions. The person subject to the conditions can apply to the sheriff to have those conditions reviewed. Where a person is in custody and is charged with an offence, the person may be released from custody with an undertaking. In both cases, the person can apply to the sheriff to have the conditions reviewed. Legal aid will be available for representation before the sheriff. The act will also allow the police to apply to the court to question a person after they have been charged. That will be known as post-charge questioning. Where an application is made by the prosecutor for post-charge questioning, legal aid will be available for representation before the sheriff. The commencement of part one of the act and the need to change legal aid provision to support it provided the opportunity for us to implement changes on wider fee reform for police station advice. The Law Society of Scotland previously recommended that a system of block fees for police station advice be introduced. Those regulations will implement that recommendation, as well as significantly simplifying the process for solicitors claiming fees for police station advice, which simplification had also been requested by the Law Society of Scotland. There was significant stakeholder engagement around those regulations. We engage with stakeholders and we listen to the concerns of the Law Society of Scotland. From an original proposal of approximately 2.46 million per annum, we increased our offer by increasing the level of block fees, by extending the times when unsocial hours premium is paid and by providing that the unsocial hours premium be applied both to travelling time and to telephone calls. Our offer to pay the unsocial premium to travelling time was not one that the Law Society had formally sought, however we felt nonetheless that it was justifiable to make such application. Our current spend on police station advice is in the region of £520,000 per annum and the regulations in front of the committee will increase the spend to an estimated £3.2 million per annum. That is an updated figure that is provided by officials. That figure includes the new court and custody work available to solicitors as a consequence of implementing the act. Eight stakeholder events were held across Scotland to seek the views of the wider profession and 50 local faculties and practises were consulted on the draft regulations. The Scottish Government has moved its position considerably on the amount to be paid for police station advice fees, but given budgetary constraints we could not meet every single ask of the Law Society. The Scottish Government remains committed to maintaining legal aid for those who need it most. We believe that this is a good offer to the profession and implementation of those regulations will enable us to meet our ECHR obligations when part 1 of the Criminal Justice Scotland Act is implemented. Thank you, convener. Thank you minister for that statement. Can I at the very beginning express some concern about the timeframe that the committee has to look at this? You've said there's been a number of submissions and they have been detailed and quite concerning in content. This is an SSI, a secondary legislation. We've had one week, a few days literally to look at this, so I'm putting on record now that that's an inadequate timeframe for us to look at it. Before we go any further, I'd like to hear from other members. John Finnie. Thank you, convener. Good morning, minister. We have a number of submissions from various bar associations. There's a very detailed submission from the Scottish Legal Aid Board. If I refer to a paragraph in which they talk about the consultation and the events that took place, engagement events, they say that no fundamental concerns were the working of the new regulations were raised at these engagements or during the Scottish Government consultation exercise. That certainly doesn't seem to be the case with regard to all the submissions that were received. How would the Scottish Legal Aid Board form that opinion? Obviously, we don't have them here to ask them that. My understanding is that what was probably intended to be reflected in that statement was that, in terms of the approach being taken—so, a block-fee approach, simplification, streamlining of processes—that the general approach being taken was not at issue, of course. It has to be said that certain responses have referenced the level of fees. However, in terms of the general approach, I guess what the Scottish Legal Aid Board was trying to convey was that the general approach was not deemed to be unworkable or meeting with fundamental problems of principle, but, of course, as with all those issues, the level of fees, of course, was an issue and is an issue for some members of the profession. I know that members will have questions and fees. If I could ask two practical issues, then please. That's in relation to a representation that we've received and was part of some on-going work that the Police Committee was doing. That is the actual location of Custody's. Someone may well be called out to represent a Custody and, as it says, police operational requirements and centralisation of Custody units may well mean that a suspect is moved from Edinburgh to Greenock, for example. Do you believe that those proposals are sufficiently encompassing to ensure that someone isn't—first formers can get the representation, the need and that the lawyer delivering that isn't disadvantaged financially or in terms of time? In terms of the issues around the practicalities of why, in the scenario that the member has raised—Grenick to Edinburgh or vice versa might ask Mr Tidy to come in on that—in terms of the approach of the legal aid cover, what we would have are payments to recognise travelling time and the travelling time would be at half rate, half attendance rate and also if carried out wholly or partly in unsocial hours, there would be the uplift of the 33 per cent unsocial hours premium attached to that in addition to mileage. Where the travel is over, I think it's had to our period, that is the automatic claim that can be made in terms of the simplified online processes, then authorisation would need to be sought from SLAB, but the SLAB facility for that would be available 24-7 and where you could show that the distance required, perhaps local roadworks being at play, perhaps weather conditions being at play as well, then that would be taken into consideration in terms of any grant of an extension of the automatic travel time that can be assumed. That would be the way that the fee structure, the legal aid fee regime, would look at the issue of travel. Perhaps I could ask Mr Tidy to get to the first point of Mr Finnie's question. When someone still at a suspect status would be taken to the closest custody facility and interviewed there, there wouldn't be long-distance travel involved in that because it would be counterproductive for the police because they would have to go back to take witness terms etc, so they would be taken to the closest custody facility for the interviewed to take place. The scenario as outlined by the Law Society of a solicitor had been called out to represent someone in Emma to find that they'd perhaps been transferred to Grinnell, that could not happen. Well, there may be exceptional circumstances where, after the initial inquiry was dealt with, the person was interviewed for that particular crime, another crime that the person suspected for may be discovered at a later point in the person's custody after they've been transferred, but that would be an exception where another crime that the person suspected for would be identified. Minister, we've had two bits of legislation alluded to the working time regulations and also ECHR to relate. Do you believe that the existing scheme is compliant in both those terms? Yes. I think that it has to be recalled at the outset that the duty is not mandatory to participate in the duty scheme and even if participating in the duty scheme, you can make yourself unavailable. I think that those basic rules of the duty scheme are important to bear in mind in that regard. That doesn't change with the new scheme. The previous scheme was compliant in this one, is it? No, the duty scheme remains an option for a solicitor to participate in or not. Secondly, even if you participate in the duty scheme, you are not required to make yourself available at all times. Indeed, I don't know for getting on to the code of practice that has been in discussion with the Law Society and has just been issued in the final form yesterday. We have, okay. Hold fire on that just now. Before we leave this line of questioning on travel, perhaps Mr Tidey was not aware of the evidence that the police sub-committee heard where police are routinely or very frequently having to travel very long distances in order to access a custody suite. Obviously, there is a time implication there. In some of the evidence that we have looked at or has been presented to us, it is not just the travel time. If, for example, a doctor is not available to do the necessary tests, then one submission was a solicitor leaving at 10 to 11 to attend a police station where they are required to be and leaving something like 6 o'clock in the morning and being in court at 10 o'clock the same day. Now, it seems to me that there are most certainly working time direct of implications in that. To what extent has the minister looked at those implications? I would say that I do not know all the facts and circumstances, and if we knew the facts and circumstances, we could have a look at that in detail. It was just a paragraph about, as I said, circumstances, but I do not know all the ins and outs of that case. I am very happy to have that looked at, but absent the information in detail of the specific facts of that incident case, it is quite difficult to make a detailed response to it. No point, but I took from it, minister, was that the solicitor can appear at the station ready to represent the client, but if other people are involved like a police surgeon and you are waiting for them to return, then you can be there for many, many hours. Without looking even at the specific incident, there is a general point there that needs to be addressed. As I say, first of all, inciting an incident case without giving all the details of the case makes it a wee bit difficult to make a detailed comment on an incident case if you do not have all the information, but I would go back to what I said. The duty scheme is not a mandatory scheme, it is not mandatory to apply to be a duty solicitor and it is not mandatory to make yourself available at all times even if you are a participant in the duty scheme. Those are two fundamental issues to bear in mind. In terms of making yourself available on call 24-7 and all the rest of it, in the discussions on the code of practice, language to the effect that the solicitor could leave a voicemail message to say that I am unavailable, that was unacceptable for whatever reason to the profession. In the interests of reaching a compromise, the Scottish Legal Board agreed to delete that language. A solicitor is not even required to leave a message on their answering machine to say that they are unavailable, which would be helpful because then it would reduce delays. Otherwise, the police or the Scottish solicitor's contact line would have to assume from silence after a certain period of time that that particular solicitor is not rocking up. We are where we are and the code of practice has been issued without that requirement for our voicemail message to be left on the solicitor's voicemail. That might not eradicate some of the delays that the committee is talking about, but that is where we are and that is what the legal profession wanted to secure in the code of practice. That has been agreed to, I suppose, with some reluctance by the Scottish Legal Board. There will be other questions on availability, but Liam McArthur, sorry. Okay. Thank you very much. Good morning, minister. Just following on a similar theme that you referred to, the fact that it is not a requirement on solicitors to make themselves available for duty. However, in a number of the submissions that we have had from the society of solicitors and procurators of Stirling society of solicitors in the Supreme Courts, the Dunfermline district society of solicitors and others, they all make the point about their expectation that the regulations that they have implemented are drafted are likely to make a situation where there is already often a difficulty in getting solicitors to attend. That is only going to be exacerbated by the regulations. I think that the Dunfermline district society at a faculty meeting have confirmed that the unanimous view of those present at the faculty meeting is that if the regulations are laid in the present form then no firm will participate in the police duty scheme and the others have referred to have made similar points. The practical implications of that would appear to be very serious. As the conveners already indicated, we have had limited time to take further evidence on that. However, how would you respond to the suggestion that the regulations are likely to make what is already seen to be an area where there is not an overabundance of provision available is only likely to make that situation worse? To try to respond to the member's question as fully as I can, I would just mention a few different issues. First of all, I think that it is important to recall that eight stakeholder events were held in Glasgow, Edinburgh, Aberdeenden, D, Inverness, Falkirk, Camarnick and Dunfermline. In addition, in terms of the consultation on the draft regulations themselves, that was commenced in August. Initially it was a four-week consultation, and the Law Society of Scotland requested an extension. An extension was agreed to the consultation closed on 15 September. Fifty faculties and member practices were consulted, and we received from the legal profession three responses—the Law Society of Scotland, Edinburgh Bar Association and the Dunfermline Society of Solisters. A consultation of 50, we received an extended consultation, and we received three responses. In terms of my engagement with the process, I have had several meetings with the Law Society of Scotland and their legal aid negotiating team headed in this instance by Mr Ian Moore and other officials from the Law Society. I have to say that, in the end of the day, the key ask of the Law Society that we couldn't meet, having met several of the other asks, was an increase in the bloc fee itself. We did go away and look at whether there was any room within the legal aid budget to try to do that, and we came back and explained to Mr Moore that that would not be possible. However, when we got to that stage—that is at the last 28th, 29th of June of this year—the outstanding issue was the increase in bloc fees. It wasn't any other issue, so we had already increased the bloc fee rate to reflect concerns. We had already extended the definition of unsocial hours to include not just, as it is at present, which is from 10 p.m. until 7 a.m., but to include from 7 p.m. until 7 a.m. to include all day Saturday and Sunday, and to include eight specified national holidays. We applied that to telephone attendances for work and telephone calls that were made during the unsocial hour, and we applied that to travel, notwithstanding the fact that the Law Society had not initially requested that. We did move considerably to the extent that we could within budgetary constraints. The last issue that was on the table if we like was the increase in bloc fees, and we explained to Mr Moore why we couldn't move any further on that. That was in the position with the Law Society negotiating team at the end of June of this year, and the issue was that I was to go away and look at an issue that they had raised. I did do that, and we wrote to them on 30 July after I had had a chance to do that, and then we proceeded to consultation. That is the kind of background. I note some of the representations that have been made to the committee in the past few days or so, but that is not the position that we had or I had in my dealings with the Law Society at the end of June of this year. As I said, on Firmland and District Society, it could hardly be clearer in terms of the expectation about the consequences of passing the resolution. What assessment has been made of the likely availability of solicitors on the basis of the provisions of the regulation? There is no requirement placed on solicitors, but ultimately, I suppose, the committee needs to be assured that the availability of solicitors is there in order to satisfy access to justice and all the rest of it consideration. What assessment has been given either on a national level or, potentially, regionally specific problems arising due to a lack of solicitors being available? I want to explain briefly what the process is. The duty scheme for both police station and court is in place until the end of March 2018. To withdraw from the duty scheme, you have to give one-month notice. What we plan to do—the Scottish legal aid board plans to do—is to seek and intimate request interest in the new duty scheme for police station and court, going forward post-March 2018, by the end of December of this year, with a view to seeking intimation of interest in the new duty schemes going forward for court and police station by around 26 January 2018. That is the normal process that would apply anyway, so that allows us to be apprised of instances in which any particular solicitor was seeking to withdraw from the duty scheme and allows us time to put in place the arrangements going forward. Obviously, it is a matter for each solicitor whether they wish to participate in the police station duty scheme or, indeed, the court duty scheme. If there was no take-up to an extent that it would change the status quo in terms of numbers, then, obviously, the legal aid board would seek to make alternative arrangements and have been given consideration to that various scenario if that were to come to pass. As I said, we are being told that even the status quo is leaving things very tight in certain areas. A suggestion that that would exacerbate that situation has to be a concern. For example, having additional solicitors in place to deal with duty, police station duty would be a possibility from, for example, the PDSO, and that would be one possibility that the legal aid board could pursue. Obviously, at the moment, we have not received any mass intimations of withdrawal from the duty scheme, and I am very happy to keep the committee apprised of any developments in that regard. There is a one-month notice period, as I say, as regards any withdrawal, and therefore we obviously continue to monitor the situation very closely. In the end of the day, we have to remember also that this is very much about the rights to be introduced by the Criminal Justice Scotland voted on by this Parliament, very important rights meeting our ECHR obligations and ensuring that we can extend free legal provision at police stations to all those who are detained at the police station as was foreseen in the Criminal Justice Scotland Act 2016 during its legislative passage. We will ensure that that happens because that is the obligations that we are required to meet under the ECHR. We hope that solicitors will feel that this deal, which I think is a good deal, deals with a lot of the issues that had been raised and provides for a simplified process of claiming your fee, which is very important because at the moment the cumbersome nature of the process whereby you have to also get a signature, a hard copy signature of the client, and it is a two-stage process in terms of getting your fee, many telephone calls are simply unclaimed for. Bearing in mind, the consultation can be done by telephone. Many telephone calls are just not claimed for because solicitors feel that it's too much of a hassle, frankly, to go through the procedure of doing that. We don't want that to be the case. We want people to be paid for the work that they do and therefore we hope that this new package, the level of fees, the simplified procedure and the application of anti-social hours premium to travel for, as I said, wider definition of anti-social hours. We hope that that will make this a more attractive option for the solicitor profession. The one process point that you mentioned previously ministered the engagement with the Edinburgh Bar Association amongst a couple of others. In the Edinburgh Bar Association's submission to the committee, it suggests that the association would like to make clear to the committee that those policy developments have become known to us by virtue of having been told of them by individual police officers. It is a grave concern that they have not been the subject of official communication. The concerns that this association has had about the imminent introduction of those statutory provisions have been well known to all relevant bodies for several months. We have not been made aware of the policy positions that serve to confirm that our suspicions are indicative of utmost bad faith. To the point that John Finnie raised initially in terms of the evidence that we have received from the Scottish legal aid board, it is hard to square those two conclusions. I wonder whether you might be able to shed light on that. I think that there are two separate issues here. First of all, on the general fee regime, yes, we had engaged in consultation, we engaged in eight stakeholder events, 50 firms and faculties targeted in our consultation. The Edinburgh Bar Association was one of the three of the legal profession that responded to our consultation. That is on the fee side of things, but perhaps the member is getting to the criminal justice provision side of things. Perhaps Mr Tidy can explain exactly the nature of the level of engagement with the profession on the part of the Scottish Government police division and others, not just with the Edinburgh Bar Association but with the profession as a whole, because he was involved in some of his work. Thank you, minister. Mr Matheson made a number of commitments during the progress of the bill to engage with stakeholders regarding the new provisions of vesicle aberration and post-charge question. We carried out a number of stakeholder events with the legal profession and other victims groups. We carried out two events for vesicle aberration. We carried out two events for children revisions, both of which were attended by the legal profession. Myself and the Police Scotland officer have carried out individual presentations to Glasgow Bar Association, Falkirk Bar Association. We have carried out a webinar event with a lot of society. We have carried out a joint event with John Scott QC regarding part 1 provisions. We attended the legal aid conference to carry out a presentation on part 1 provisions. I did make an offer to Edinburgh Bar Association back in August to carry out a similar presentation on the provisions within part 1 to their members, which was not taken up. Mary Fee, followed by Liam Kerr. Thank you very much and good morning, minister. A number of the areas that I wanted to ask about is already being touched on by Liam McArthur, so I will not go over them again. I just wanted to raise with you a concern that has been raised by the Dynfernalyn District Society of Solicitors. They talk about the duty of care that employers have to their staff, but they also raise a concern around sex and equality discrimination, because they say that the effect of the lack of remuneration for those on call. I accept that it is not mandatory that solicitors will be on call, but there is no provision available to fund childcare, nor to provide care for ill or infirm dependents. They say that they are really quite serious concerns. They also raise the concerns that firms in the future potentially could be drawn to recruiting only those who do not have children or caring responsibilities. To me, that is quite a serious concern. I wonder what thought the minister has given to that. I noted those points raised. I go back to the point that it is not a mandatory obligation to participate. I would also say in that regard that the nature of police station duty is such that the actual hours of operation are out with the control of anyone. Inherently, in the nature of that particular kind of work, there will be instances where it doesn't involve unsocial hours. That, of course, involves a whole series of issues such as childcare, caring for elderly relatives and caring for informed members of the family. That is why it is recognised that the system is not mandatory. Even if you are hoping to be able to make yourself available as a duty solicitor when you are on the roster and that is your plan, nonetheless, you can be unavailable and that is accepted within the duty scheme. It recognises directly the kinds of circumstances that Mary Fee is talking about. In the end of the day, the nature of the duty system police station is such that it will inevitably involve hours that make life difficult in terms of planning, but it is recognised that, nonetheless, you can make yourself unavailable and that is recognising also the circumstances that Mary Fee rightly raises. The point that she is making, particularly in relation to small firms, is that we have a very small core team of solicitors. If they have participated in the scheme in the past and they are in the position where they are recruiting solicitors, they may be minded to recruit solicitors who do not have the responsibilities that we have discussed. That is a very serious avenue to start going down. I agree with the member absolutely that that would be very serious indeed. I would find it rather disturbing that members of the legal profession would consider acting in such a way, because acting in such a way is clearly discriminatory. There are various ways to seek to solve matters. The very last and unacceptable way would be in a discriminatory fashion. I just really do not accept that that is what people would be required to do, not least because the duty system is not a mandatory system. In terms of the deal being offered, I think that it is a good deal and it is certainly much better than what solicitors have been participating in up until now. I make one final point in terms of trying to look at practical solutions. I understand that, in terms of the timescale in which a legal trainee can appear in the criminal courts, that is being shortened to reflect a number of issues, including the kinds of issues that the member has raised. Could I just follow up on Mary Thee's point? If the minister has done an assessment of the crease number of people who would now be eligible for legal advice? I think that there was a figure in the financial memorandum to the Criminal Justice Scotland bill. Yes, there was figures there on the number of cases that we would anticipate. We have no idea of what the new court practices will mean, but there is a figure of 1,600 and something. I said 1,663,360, so while the minister is saying quite confidently that people can opt out, there is going to be potentially a huge demand here and a real problem if so many people do for the reasons already discussed, decide to opt out, ask her to take that on board. Liam Kerr I will follow up on a few of the points that were made for me, minister. Am I right in thinking that there has been no equality impact assessment done at this stage, or has that been done now? There was a sort of equality impact screening done on the basis that there were no groups with protected characteristics that were identified as any issues being raised with regard to those groups. I feel that EQIA was not proceeded with on the basis that no groups with protected characteristics were affected. The people that were listed as affected were lawyers. Liam Kerr Yes, so I am clear that when the law society said that, as at the start of the November, there was no equality impact assessment, that remains the case, does it not? Am I right in thinking that there was no full equality impact assessment, there was a screening done, there were no groups with protected characteristics identified as being affected and therefore the process did not mean proceeding with a full EQIA? Liam Kerr If I might press you on Liam Kerr's points, various representations that we have had suggest that that overall this could make it less attractive to enter the profession, and taking the convener's point, there could be less resource to dispose of these matters, so then we cannot meet the ECHR rights if that is true that you alluded to earlier. Do you accept that or are the representations that we have had not correct in some way? Liam Kerr Well, firstly, the position is that, as of the moment, we haven't received any mass intimation of withdrawal from the police station duty scheme and obviously we don't know the future. Liam Kerr I am asking minister, I understand why you went down that route, but what I am asking is the attractiveness of the profession in general. We are trying to encourage, we are going to need a lot more resource going forward by the sound fit and that will require people to enter the profession and there is a suggestion that this is going to make it significantly less attractive to enter the profession and that there will be a resource problem going forward, so it's not about people dropping out of the duty system, it's about people not entering it in the first place. We have had representations to that regard. Do you think that they are reasonable? Do you think that that will come to pass or do you disagree with those representations? Liam Kerr I think that it's all quite speculative. I don't have any evidence to suggest that this in and of itself, this regulation proposing the fee regime and the simplified accounting process will in and of itself lead to some mass decline in people seeking to do police station duty across Scotland. Indeed, it's important to remember that the stakeholder engagements that were held, and going back to Mr Finlay's first point, the kinds of issues that were raised were more to do with the level of fees and that was a feature particularly of central belt participation, more to do with fee levels than other considerations. It wasn't that people were coming to say, this whole thing is unworkable, go back to the table, they weren't coming to say that, they were raising their concerns about fees and that, as I say, tended to be more prevalent in areas outwith the Highlands and Aberdeen. But that then, I think, has to be borne in mind. There wasn't a big kind of outcry about this scheme per se, I mean this was picking up on the existing scheme but making it better, seeking to make it better and indeed in my negotiations with the Law Society of Scotland's legal aid negotiating team. Again, it wasn't about the scheme and the nuts and bolts of the scheme, it was about the fee compensation and indeed at the very end of the day it was about one aspect of that only and that was about the level of block fees and nothing else because by that point it appeared that they had reached a reasonable deal that they felt was reasonable in all the circumstances. Just finally, if I may, you talked there about the existing scheme. As the convener said at the start, we haven't had a great deal of time to look at this, so forgive me if I'm off on a tangent. It appears to me that if this doesn't go through, there will be some kind of lacuna coming in January. The present system doesn't carry on, the present system will disappear. If this doesn't go through, we will almost default back to an even less favourable system. Could you explain that? I feel slightly like we are getting bounced into something. The plan would be, if passed by the committee in the Parliament, that the regulations would enter into force on 25 January 2018, the day that part 1 of the Criminal Justice Scotland provisions enter into force. If the committee chooses not to pass those regulations, what would happen is that this scheme would not be in place, so that would in turn mean the following. First of all, in terms of current police station duty activity, the level of the wraparound fee regime would be the current one, so that it wouldn't be the increased antisocial hours definition. It would be the current antisocial hours definition, which is more restrictive. It wouldn't be the application of the antisocial hours to travel. It wouldn't be the increased block fee. Therefore, the position would be far less attractive for solicitors than the new regime. Of course, the position for billing would remain the old position, which is much more cumbersome to the point that many solicitors don't charge for telephone attendances. In addition, in terms of the provisions regarding the fact that all detention at police stations—although I don't like to use that word, but all detention, de facto detention at police stations at the moment is subject to no financial eligibility criteria being in place—that would change as well. Finally, for the new, that would change as well. Can I just clarify? Basically, the current arrangement that we have today, if that does not pass on 25 January, then the current arrangement that people understand as it today will continue indefinitely? No, I am saying that I am trying to break down the three areas that are coming into play here. First is that the level of fees will be lower and less attractive to the profession. Secondly, before the regulations come into force, it will be the level of fees that currently apply. If that does not pass, today's scheme carries on indefinitely in the future. As regards the level of fees, there are different issues as regards the assessment financial eligibility. Finally, with regard to the new provisions being introduced by the Criminal Justice Scotland Act 2016, as regards investigative liberation conditions being reviewed, as regards undertaking conditions being reviewed and as regards post-charge questioning applications for authorisation of that being heard, we would need to then look at having a system in place to cover those, because there are new provisions that are not covered by the provisions today. They are being introduced by part 1 of the Criminal Justice Scotland Act 2016 on 20 January next year. That could be, if necessary, by way of, for example, general determination being made by ministers. I think that John Finnie and I were the only people who did the bill, and I certainly had huge reservations about the changes that someone has brought in at present for questioning. At the point of interview, they are eligible to have a solicitor there, and they may be charged, or they may be released without charge. Under the new system, we have pre-charge arrest, and as soon as they are brought to a police station, they must have a solicitor there. Obviously, that has huge cost implications. There are two elements there. One is that the client would be entitled to have a solicitor present for interview. The other provision is that the client would be entitled to seek a consultation with a solicitor at any time, but that consultation can be by, for example, by way of the telephone. But it could be held in custody for quite some time without having to, it is absolutely essential, under the new legislation that the solicitor attend, no ifs, no bans, it is mandatory. For the interview, but not for the consultation. Under the new system? From the point of arrest. Only when they are interviewed or from the point of arrest? The entitlement is to have a solicitor present at interview. The entitlement also is to be able to consult your solicitor at any time. That consultation can be by way of telephone. At the point of arrest, the solicitor is there, and I think that that is where we are on to the 24-7 consultation by telephone. Could Maurice Corry now answer his question? Can I ask Mr Tidy a question? During your research for this, and I come to this as a non-lawyer, has any comparison been made with any other professions or industry and how they deal with antisocialised work that is required by the management team in that, and indeed over time requirements? If not, why not? I am not sure to what extent there has been a detailed analysis with regard to other professions. The point of the exercise here is that this is not a compulsion part of your contract of employment. That is an optional opportunity, if you like, for the individual solicitor firm. Even if you participate in the duty scheme, as I have said, you are not required to meet yourself available 100 per cent of the time. Therefore, I am not sure that a direct analogy would stack up. That is not an obligatory part of your employment contract. It has not been none. No, but I do not know if the analogy is directly relevant because it is an optional. The duty scheme is optional. Once you are signed up to the duty scheme, your participation is not required 100 per cent of the time. I understand that. When you are trying to market this to the legal profession, it is useful to have it on the baseline of what goes on in other professions and indeed in industry. We have very clear guidelines in industry there on times over normal working hours, i.e., over time, childcare, care for the elderly, and they are all taking considerations employers. It does not seem to me that this has not been applied clearly in your research. The law has already worked, in many cases, beyond 9 to 5. It would be up to its individual firms to make appropriate arrangements. I am sure that they all do that. In my discussions with the legal aid negotiating team industry and more, who was heading that up, it was taken as red that this was the duty scheme and what they were trying to achieve was the best deal that they could get for their members in terms of the fees that are available for participation. As I say, the conversations were very much rooted in the context that this was the police station duty scheme with which they were well acquainted. Maureen Watt-Ruskawd, I ask you a very small follow-up question to the question that Maurice Corry asked you. Are there any figures that you could give us of the number of solicitors that are signed up currently to the scheme and how many solicitors when asked to come out, opt out and say that they cannot come out and make themselves unavailable? I would have to get those statistics. It would be interesting to see how many are signed up and how many we need to cover. It is fair to say in the discussions that Slab had with the profession about the code of practice and at the various stakeholder engagement events. As I mentioned earlier, last minute sticking point was language that would have suggested that a lawyer had to, on their answering machine, make a statement to the effect that I am unavailable contact, the solicitor contact line. That was a no-no for the profession that they refused to countenance. I am not entirely sure why they suggested that that would give an idea of 24x7 availability, whereas others could perhaps view that as just leaving a message on an answering machine to say that you are unavailable. However, it suggests that already there are instances where that somebody may call out for one particular case but may not decide to call out for another kind of case. That freedom to engage or not engage is already very much a feature of the system. However, it would be helpful to seek that information. That concludes the points of clarification, minister. You have made quite a lot of the fact that you feel a lot of the concerns that are raised around the table were not raised in June, but the point is that they have been raised now. If I could just recap on some of the things that we have raised around the committee in terms of the increase of police station attendants, the change in employment contracts required, the duty of care implications, the sleep issues, the disruption with family life, sex equality discrimination for those that are carers and caring obligations, police Scotland policy, plea charge arrest requiring a solicitor, as well as an aldout to attend, vulnerable adults with mental health and other issues, the increase of the number eligible for legal aid advice, £163,360. The fact that firms are downsizing at present and may find it impossible, even with the best will of the world, to meet those obligations, the lack of communication. A lot of the submissions have said that they found out from individual police officers that there was no official communication of some of the implications. Some firms have no idea if they can fulfil the service or role that is expected of them at this time. The travel issues, time taken and the movement of custodies around the country and the lack of custody suites can all add to the travel and the time that this is impinging on a solicitor's time 24-7. They are right to a private life and, therefore, article 6 concerns have been raised to human rights concerns in terms of unsocial barriers and real concerns about the working directive. This morning, minister, you have had 35 minutes to put your point of view together with a written submission. In all fairness, I am asking you to withdraw the SSI to allow the committee to take evidence from some of the stakeholders before those regulations are passed. I think that it should also be noted at this time that there are a number of us around the table who note the concerns but are satisfied with the proposal that is being made within the financial constraints at the moment. We did not ask questions on the basis that we were content with the... If that is the case, it would be reflected on any subsequent vote. Should the minister decide not to agree to what I think is an entirely fair and reasonable request, having had now 36, almost 37 minutes of giving what could be looked at as a very one-sided view of the implications, which, beyond doubt, are complex and go far beyond the monetary and financial implications? I look back at the official report that might be helpful in due course, because I have sought to answer fully and comprehensively every single question that has been put to me as of my officials. With regard to the issue of the concerns raised for the committee today, of course, we did consult with the profession. We consulted with some 50 firms. We got three... You have made that point. Yes, I know, but I feel it's important... You have made that point timing again, but... On the basis of what you have just said and suggesting that there has been a lack of communication, I would just like to deal with that point specifically, if I may, because there has not been a lack of communication. We got three responses to a consultation that was issued in August and finished by way of an extended deadline on 15 September. If you forgive me, I will interrupt you, minister, and explain what the lack of communication was. It was specifically on the police policies and how they would then impact on solicitors. Yes, but Mr Sidy has explained... If you do not allow me to finish, minister. I took fully on board that, in June, you had done a full... Am I missing something here? You had done a full consultation, and you thought that the concerns expressed today were not raised then. We took that on board. The point is that the committee must look at those concerns that have been submitted. The consultation point that I was talking about was in one of the submissions that talked about the implications of police policy. That was from the Edmund Barr Association. Mr Sidy explained that he had been in contact directly with the Edmund Barr Association. I think that it was in August that Mr Sidy offered a special wraparound session for the Edmund Barr Association, as he had done with Glasgow Bar Association. All the other events had been organised by the Scottish Government Police Division. The Edmund Barr Association... There has been every opportunity. I put the question to you, where you would draw the SI. In that case, we move to formal consideration of this legislation under item number three. You cannot have a point of order when we do move on now to... There will be an opportunity for you to comment during the debate, if you have anything to say at that point, before we move to a formal vote. We are now going to formal consideration. That is the informal part of the motion. We now move to formal debate. The minister has explained that she is not going to withdraw the SSI, so the next part of the procedure is to move to formal debate. The minister will make some opening statements, if she wants, and move the motion, and members will have a chance to put other points of view. Is that understood? Agenda item number three is formal consideration of the motion in relation to the affirmative instrument. The delegated powers and reform committee has considered and reported on the instrument and has made no comment on it. The motion will be moved with an opportunity for formal debate, if that is necessary. In motion 09233, the Justice Committee recommends that the criminal legal assistance miscellaneous amendments Scotland regulations 2017 draft be approved. I invite the minister to speak and move the motion. I reiterate what I have been trying to express in the first evidence session. We did proceed with the consultation. Only three members of the profession, if you like, Law Society, Enver Bar Association and Family Society of Solicitors, responded. There has been widespread engagement on the part of the Scottish Government police division, on the criminal justice Scotland 2016 part 1 provisions. That included an offer to the Enver Bar Association who failed to take it up for whatever reason. That is a matter for them. The nature of the scheme is that there has been a police station duty scheme in place for some time. We are seeking to improve that, not to make it more difficult. It is to be recognised as well that the right to consult a solicitor will include telephone attendances and therefore that should be factored into the consideration of the displacement of people or otherwise. That, in terms of the financial compensation for us listeners, represents a good deal within the current budgetary constraints. In our discussions with the Law Society negotiating team and Mr Ian Moir, the only outstanding issue when we left the table on the 28th, 29th June of this year was the issue of looking at whether we could increase the block fee from the increase that we had already provided. Further to my deliberations and looking at the figures, we just could not afford to do that. That was communicated to the Law Society on the 30th of July in a letter that I sent to Mr Moir. I think that we have worked very hard to come up with a scheme that is more attractive rather than less attractive and also in terms, importantly, of being able to claim a fee without going through hoops to do so. That is a very important part of a lawyer's daily activity. I think that the simplified fee structure as requested by the Law Society of Scotland, the fact that you do not need a hard copy signature, the fact that it is not now a two-stage process to claim your fee, will ensure that lawyers are paid for the work that they do, which is something that we would all wish to see. Finally, the very important provisions of the Criminal Justice Scotland Act 2018 come into play on 25 January 2018. Those are seen as very significant provisions voted on by this Parliament—very significant provisions increasing the rights of individuals held at a police station. I think that that is something that this Parliament should be proud of. I would be very keen to see us ensure that nothing happens such that those enhanced rights could be put in jeopardy. Do members have any comments? It is only comments at this stage. No comments from members. My only comment is that I have not been satisfied with the minister's explanation today. In all fairness, I think that the people who have made and raised very concerning and complex issues about this SSI should have their opportunity to be heard and for the committee to evaluate if those are genuine concerns, if there are concerns that can be resolved, or if they have no foundation on them, but I think that for the smooth running and fairness and access to justice, that should be the case. I therefore put to the minister if he would like to wind up. The question is that the motion 09233 in the name of Annabelle Ewing be approved. Are we all agreed? No. Those who are agreed first or not agreed? Agreed. Those who agree with the SSI? Those who are not agreed? For the SSI 8, those against 3, which means that the SSI is passed. I thank the minister and her officials for attending. There will be a report on this, and given the controversial nature of it, I will ask the vice convener to look at the report and make sure that she is satisfied with it. The committee can attend with that approach. Thank you for that. I thank the minister and her officials for attending to spend briefly to allow a change of witnesses. Item 4 is consideration of an affirmative instrument, the police investigation review, commissioner application and modification of criminal justice Scotland act 2016, Scotland order 2017. I welcome Michael Matheson, cabinet secretary for justice and his officials, George Dixon, police division and Louise Miller, director of legal services with the Scottish government. I refer members to paper 2, which is note by the clerk, and I invite the cabinet secretary to make a short opening statement. Helpful if I briefly explain the purpose and effect of this order. Part 1 of the criminal justice Scotland act 2016 represents a significant change to the system for arresting and holding people in custody. The new arrest and custody processes contained within part 1 of that act will provide a clear balance between the proper investigation of offences and the protection of suspects' rights whilst in police custody. As the police investigations and review commissioner can be instructed by the procurator's fiscal to investigate criminal allegations against a police officer, part 1 of the 2016 act needs to be extended to cover criminal investigations undertaken by the PIRC. That order applies to a number of provisions of part 1 of the 2016 act, to cases where a member of staff of the police investigation and review commissioner is exercising the powers and privileges of a constable when undertaking a criminal investigation on behalf of the commissioner. That will ensure that the PIRC investigative staff adhere to the provisions of the 2016 act and that any police officer arrested or detained by the PIRC receives the same legal protections as a member of the public arrested by the police. The order also makes modifications to ensure that where 2016 act functions rely on the rank structure of Police Scotland that it reflects the hierarchical structure of the PIRC when also exercising those functions. For example, when a senior investigator is required to authorise an extension to a detention in custody. Although the order provides for modifications to the Criminal Justice Scotland Act 2016 to cover PIRC investigations, the practical working arrangements have also been considered. The PIRC and Police Scotland have agreed a framework that will include a memorandum of understanding to ensure that it is known how they will deal with cases that require a criminal investigation when the Crown Office has directed the PIRC to do so. That is particularly important as the PIRC will need to make sure to make use of Police Scotland's custody facilities in the course of their work. All such investigations will be carried out under the direction of the Crown Office and Procurator Fiscal Service. If approved, the order will come into force at the same time as the implementation of part 1 of the Criminal Justice Scotland Act 2016. Of course, I am happy to answer any questions. Good morning, cabinet secretary. Cabinet secretary, you said that the PIRC staff would need to use Police Scotland facilities. In the paper that we have here, the policy note that says that it is likely that PIRC investigative staff would use the Police Service of Scotland custody facilities. If not Police Scotland facilities, what other facilities would be used? The reality is that it would be Police Scotland's facilities because they hold all the custody facilities that we have, so it would be difficult to envisage any other facility that has been used. In relation to the specific, it says that a memorandum of understanding between the Police Service and PIRC will set out. Can you confirm the staff association and trade unions will be involved in discussions around the memorandum of understanding, please? The work relating to the memorandum of understanding has been taken forward by Police Scotland in the Crown Office in developing the protocols around it. The process that Police Scotland has in place for consulting the staff associations is through the Police Scotland programme board for the implementation of the 2016 act. Any discussions relating to that will involve the Police staff associations who are involved in the programme board around any aspects of the memorandum of understanding that it is then put in place between Police Scotland and the Crown Office. The trade unions? I do not know whether the trade unions are involved in the programme, but I do not believe that the trade unions are directly involved in that process. However, I can check with Police Scotland for you and come back to just to clarify the engagement that it would have with the staff associations or the trade union organisations. Okay. Thank you very much indeed. Are there any more questions or comments from the minister? Do we should wind up minister? In that case, the question is that motion 09233, in the name... In that case, I put the question that motion 09393, in the name of Michael Matheson, be approved. Are we all agreed? We are all agreed. I thank the cabinet secretary and officials for attending. Before I suspend our members' content to delegate authority to me as convener, I agree the draft report content. Thank you for that. I suspend briefly to allow a change of witnesses. This is considering of the Domestic Abuse Scotland bill at stage 2. I ask members to refer to their copy of the bill and to the marshaled list of amendments for the item. I welcome back the cabinet secretary and a change of officials. Now I move to consideration of the amendments and call amendment 13, in the name of Mary Fee in a group on its own. Mary Fee to move and speak to amendment 13. Thank you, convener. The purpose of the amendment and my name is to strengthen the bill by requiring the Scottish Government to produce an annual report as soon as practicable after 31 March each year. The report would contain information on offences created by section 1 of the bill and aggravated offences under the abusive behaviour and sexual harm act 2016, including the type of support and assistance provided to victims, the average period of time in which support was provided, and the provision of funding to secure that support. The report would also contain information about the number of relevant proceedings to which special measures were applied for and authorised. It is my intention that the new reporting mechanism would build an evidence base that could be used to improve services for victims and demonstrate that the bill is being properly implemented. The annual report would become a vehicle to ensure that support is provided to victims of domestic abuse, that there is appropriate funding for organisations supporting victims, such as voluntary and third sector organisations, and that special measures are provided for victims and witnesses appearing in court. There is a significant level of consensus about the aims and objectives of the bill as it stands, and the inclusion of my amendment would simply establish a reporting mechanism to ensure that Government, the courts and public services are delivering the ambitions for better victim support that we all share. I move the amendment in my name. Do members have any comments or questions? Thank you, convener. Amendment 13, as I understand it, is set out by Mary Fee, intended to address concerns about the need to ensure that effective support and assistance is in place to help victims of domestic abuse. I recognise that the intention of its amendment is to collect information that would seek to enable steps to be taken to monitor and improve how support is provided to victims of domestic abuse. Although I sympathise with the intention behind the amendment, I am concerned that it risks placing a significant burden on the mainly third sector bodies who provide support to victims of domestic abuse, and that that burden could potentially mean less of the funding given to those bodies going directly to help victims. Many of the third sector groups who provide support to victims of domestic abuse receive funding from the Scottish Government, and, as a condition of that funding, they are, of course, required to report on how the money is spent and on what support they provide to victims. However, I am afraid that I have some concerns at the level of detailed information that the amendment would require third sector groups to collect and pass to the Scottish Government is disproportionate to the aims of effectively monitoring support provided to victims of domestic abuse. Indeed, it would mean that time and money could well be spent on reporting, which does not provide insight into how services could be improved. In order for the information that the amendment requires to be included in the report to be collected, third sector groups and other agencies that provide support to victims would have to record and transmit to the Scottish Government information about the length of time they provide support to each individual, the type of support they provide and the manner in which it is provided. In 2016-17, Police Scotland recorded 27,496 incidents of domestic abuse that resulted in the recording of at least one crime. If a significant proportion of the victims sought support and assistance from third sector bodies, the amount of data that would be required to record and provide to the Scottish Government would be very large. I consider that there is a risk that, given that each case will be quite different, any attempt to categorise the type of assistance and support that was provided or the manner in which it was provided would not necessarily provide the kind of detailed information that would enable decisions to be made on how services could be improved. The amendment is specifically concerned with cases involving the commissioning of offence under section 1 of the bill or an offence where the domestic abuse aggravation at section 1 of the Abusive Behaviour Sexual Harm Scotland Act 2016 applies. Many of the groups that provide support to people experiencing abuse do so irrespective as to whether the victim has reported the matter to the police and they may not necessarily know whether the victim has done so or not. An additional specific burden would be placed on some third sector bodies for this breakdown between help offered to people where an offence has been committed and where it has not been. There may also be data protection issues with any approach that requires information to be shared between the police and third sector groups without the prior agreement of the subject of that data, which could add to the difficulty for third sector groups of providing accurate information about the cases to which the amendment relates. I have great sympathy for what lies behind this amendment and the amendments lodged by Clare Baker relating to reporting on the operation of the new domestic abuse offence, which was debated on 21 November. However, I do not think that we should rush to specify in law the exact detail of what data should and should not be collected. There should be a process where key interests are given the opportunity to offer views on what information would be proportionate and valuable to inform understanding of how the legislation is operating. That process should also be informed by the fact that there will be information published on the operation of the legislation as part of the existing data routinely made available by the Scottish Government in our criminal proceedings, recorded crime and crime and justice service publications. I also have some concerns that departing from the normal approach to collecting collection of data for each new piece of legislation may not be the most appropriate approach. I am happy to work with Mary Fee and Clare Baker ahead of stage 3 to consider whether additional steps are required to ensure that information relating to the provisions of support and assistance to victims of domestic abuse is collected and made available. However, for the reasons that I have outlined, I am concerned that the approach proposed in this amendment would place too much of a burden on the groups that provide support that they would have to meet the requirements of the burden from their existing resources with the potential unintended consequences of reducing direct support to victims. I therefore invite the member to withdraw amendment 13. Mary Fee to wind up, presser of the draw. Thank you, convener, and I thank the cabinet secretary for his remarks. Over the course of the committee's evidence sessions, members heard very moving testimony and compelling evidence about forms of abuse that are not sufficiently addressed in the law. As I said in my earlier remarks, there is consensus around the need to tackle domestic abuse and the need to close the gap. That is what the bill seeks to do. I believe that my amendment would strengthen the bill by placing a requirement on ministers to produce an annual report. The reporting provisions that I have proposed in my amendment resemble the provisions of the human trafficking act. I do believe that writing reporting provisions in the bill would help to ensure that victims are properly supported and that there is adequate funding. In my view, the reporting mechanism will deliver improvements and services, and it is for that reason that I will press my amendment. The member is pressing the amendment. The question is that the amendment 13 be agreed. Are we all agreed? No. Yes. Right? All those in favour? All those against? The five motion votes four. Six against. Therefore, the amendment is not passed. I now move to call amendment 26 in the name of Maurice Corry and a group on its own. Maurice Corry to move and speak to amendment 26. Thank you, convener. I would like to see the Scottish ministers take such steps as to allow for the domestic abuse bill to be properly conveyed and promoted to ensure that we have maximum public awareness in society and also an understanding of the operation and clarity of the operation of this act by both the public and indeed the Police Scotland and their team, and including the kind of conduct that constitutes abusive behaviour for the purpose of an offence under section 1, subsection 1 of the domestic abuse bill. I therefore move the amendment in my name. Do any other members have any comments or questions? No. John Finnie. Thank you. I wonder if Mr Corry could outline the range—I see a lot of merit—of how that promotion would look. Presumably Police Scotland will, along with Crown Office Procurator Fiscal, develop their own procedures in relation to dealing with that, but how would you envisage the public awareness? I believe that it should be done on social media, radio, etc. I would also ask for it to be put into public places such as libraries, such as police stations and indeed health centres that are made aware that where those likely victims are would go and every possible Government establishment that the public frequents. Any more comments or any questions? Thank you, convener. Amendment 26 is due on the Scottish ministers to promote public awareness of the new offence of domestic abuse. I begin by repeating what I told the Justice Committee when I gave evidence on the bill at stage 1 in June. The Scottish Government will take steps to promote public awareness of the new offence ahead of it coming into force, and that that will include raising awareness as to the kind of behaviour that amounts to abusive behaviour as set out in the legislation. As it has always been our intent to ensure that public awareness is raised prior to the implementation of the offence, and as I advised the committee a few months ago, amendment 26 is unnecessary to achieve what Maurice Corry seeks as it is going to happen anyway. In addition, I would add that such a requirement is not normally included in legislation. The statute book would become a bit crowded if we had a provision about publicity in relation to every new offence or policy that was put into law. When a new offence or other significant policy change is created, the Scottish Government will always consider what steps are required to ensure that the public is made aware of that. Members may remember that, earlier this year, the Scottish Government ran a campaign to coincide with the commencement of the intimate images offence contained in the Abusive Behaviour and Sexual Harm Scotland Act 2016, and that when statutory directions concerning how victims of certain sexual offences may react were commenced, we funded Rape Crisis Scotland to produce the I Just Throws campaign to change the public's understanding on why victims of rape do not always fight back or report the crimes straight away. On the basis of the commitment that I gave to the Justice Committee in June, which I have repeated today, I would ask the member to withdraw amendment 26. Lloris Corry, to wind up, press a withdrawal. I press the amendment, and I am slightly surprised by the minister's retort on the statement, because it was not the view that he took in the debate when we debated the subject in the chamber. Are you moving the amendment? Move there. I still continue to move the amendment. The question is that amendment 26 be agreed or we are all agreed. We are not all agreed. There will be a division. Those in favour, please show. Those against. Four, three against. Eight. The amendment is not passed. Call amendment 27. The name of Claire Baker is already debated with amendment 37 on day one. Claire Baker to move or not move. The question is that amendment 7 be agreed to. Are we all agreed? Agreed? No. We are not all agreed. Amendment 27. We are not all agreed. There will be a division. Those in favour, please show. Those against. Are there any abstentions? The vote is three, four, five against. I don't think that's right, is it? Could we take it again just to be an absolute issue? We seem to have an extra person, I think in it. All those, four, two. All those against, abstentions, two, four, six against, three abstentions, the amendment falls. Call amendment 28 and the name of Claire Baker are already debated with amendment 37 on day one. Claire Baker to move or not move. The question is that amendment 28 be agreed to. Are we all agreed? No. We are not all agreed. There will be a division. All those in favour, all those against. All those in favour, six. All those against, five, which means the amendment is agreed to. Call amendment 13 and eight and the name of Liam Kerr in the group on its own. Liam Kerr to move and speak to amendment 38. Thank you, convener. Good morning, cabinet secretary. The purpose of my amendment will strengthen the bill insofar as the committee heard extensive evidence throughout this process of the requirement for emergency barring orders. Amendment 38 therefore requires the Scottish ministers to carry out a review of legal measures that have the effect of temporarily excluding a perpetrator or a suspected perpetrator of domestic abuse from the home of the person they have abused or potentially abused. This review would need to take place within one year of royal assent on the act and requires the Scottish ministers to consult with certain specified persons in carrying out the review. The results of the review would need to be published and laid before Parliament, and the Scottish ministers would be required to announce their intentions in respect of the results of the review. I appreciate that the cabinet secretary made a public commitment in a letter of 6 November to the Justice Committee to formally consult on the introduction of new powers in this area, but I would prefer to hear commitment in the bill to obligate it, and I therefore move the amendment in my name. I thank members of the committee for considering the important issue of how people at risk of domestic abuse can be better protected. I understand that amendment 38 is directed at the issue of emergency banning orders. I am aware that you heard a range of opinion on the operation of emergency banning orders at your session on 31 October. While there were a number of views offered as to the potential benefits of emergency banning orders, there were also a very wide range of unanswered questions. Following that evidence session, I wrote to the committee to explain how the Scottish Government intends to consider the issues relating to emergency banning orders. I explained that a consultation would be published in early 2018, seeking views on the many unanswered aspects of how such legislation might operate. Those include what exactly should be the basis or grounds on which orders may be sought or granted, who is to apply for orders and what court procedures are to be involved, who should have the power to exclude someone from their home, are there to be powers of arrest, what kind of funding would be needed to operate the scheme. Those are just a few of the many questions that will need to be explored, and they will be explored carefully through the Scottish Government's consultation. Today, I am absolutely confirming, as I advised in my recent letter to the committee that the Scottish Government will consult justice partners such as Police Scotland and the Crown Office, and other people in groups who have an interest in those issues. Liam Kerr's amendment 38 is well-intentioned and picks up on the discussion held by the committee. However, the Scottish Government has already committed to consulting on those issues, so the amendment is unnecessary to achieve what is being sought, as what is being sought is going to happen anyway. In addition, I believe that it is not best practice to cutter the bill with provisions that say nothing more than what the Government has as repeated by me on the record just now, already undertaken to do. In light of the firm commitment that was repeated today, I would ask Liam Kerr to withdraw amendment 38. Thank you, convener, and I thank the cabinet secretary for his remarks. I am comforted and reassured by the cabinet secretary's remarks and indeed the strengths of the cabinet secretary's remarks, and, for that reason, I shall withdraw the amendment. The question is, therefore, that section 13 and 14 be agreed to. Are we all agreed? The question is that the long title be agreed to. Are we all agreed? That ends state through consideration of the bill. We will suspend briefly to allow change of witnesses. It is our sixth evidence session on the offensive behaviour of a foot-bond threatening communications repeal Scotland Bill. I refer members to paper 4, which is a note by the clerk, and paper 5, which is a private paper. I welcome to the meeting James Kelly MSP, the member in charge of the bill. Mary Dinsdale from the non-government bills unit with the Scottish Parliament, and Katrina McCallum, solicitors office of the Scottish Parliament. Mr Kelly, do you want to make a short opening statement? I do indeed, convener, and can I start off by thanking yourself, the members of the committee, and the clerks for the efficient and professional way that you have handled these evidence taking sessions, taking evidence from members of the public and various experts. I think that it has been very helpful indeed. I come to the committee this morning to submit evidence and speak in support of my bill to repeal the offensive behaviour at football and threatening communications act. I believe that the evidence that the committee has received has been overwhelming in support of the repeal in terms of the written submissions. Over three quarters of individual submissions supported full repeal, as did more than a half of organisational submissions. I believe that the evidence sessions that the committee has held have been very instructive, and we have heard from football supporters how they feel that they have been unfairly targeted. They do not support the existing legislation, and they have shown how ineffective that legislation has been. One witness gave the example at a league 1 play-off match between Partick Thistle and St Johnson and how supporters were doing the conga and were then subject to the attention and warned by the police. In terms of the legal representations from the Law Society and the Glasgow Bar Association, those demonstrate that the law is not fit for purpose. The Law Society has established that all prosecutions brought forward in 2016-17 could have been captured by pre-existing legislation. They are also of a concern that the scope is too wide, and therefore the legislation is potentially open to further legal challenge. That has been reinforced by the Scottish Human Rights Commission, who has said that, potentially, the act is in breach of ECHR. That is a serious concern for the committee. We also heard from academics as to how people's freedom of speech had been impinged and how the legislation had not been effective in achieving its original objective. In summary, convener, I believe that the current act is a discredited piece of legislation that unfairly targets football fans. It is not an effective law and it is not achieving the outcomes that it is set out to do. Therefore, I submit to the committee my position in full support of repeal of the act. I move to questions from members, starting with George Adam. Good morning, Mr Kelly. You will no doubt be aware of the question that I have been asking during the process, but there have been methods that have created that the shame game that the two managers went toe-to-toe was what brought this to a head. It might have brought it to a head, but there has been a steady, systematic worsening of behaviour at games both on the field and off the field. However, it took a more sinister tone at that time. Trish Godman, the Deputy Presiding Officer at the time, was getting a parcel bomb through the post. Neil Lennon, the same man, the late Paul McBride, was also targeted in this way. Neil Lennon also received bullets through the post as well. Surely with all that in back, when you think of the timeline at that moment in time, surely the Scottish Government was right in bringing the legislation forward? I do not agree with the proposition that you put forward, Mr Adam. Just to put it in context, I have been a football supporter for over 40 years. I attended my first football match in 1969. I can well remember a time, particularly around the late 70s and early 80s, when there was a lot of public disorder at football matches where there was singing of offensive songs, but both sets of supporters went along to games where there were clashes inside the ground and also outside the ground, and there was a tense atmosphere around the football. I do not seek to sugar-coat any incidents that have happened over the past five or six years, however. I do not seek to downplay the incidents that you described about people being threatened with bullets in the post. However, the fact of the matter is that, in terms of the game in March 2011, there were 34 arrests and they, in the main, were for public order offences. They were not in relation to what people would term sectarian singing. The reality of that was that, at the end of the game, there was a clash between two coaches and that then became the media image that dominated the media in the coming days, and there was a reaction to that. It is also fair to say that it was in the run into the 2011 election, and I believe that it was in the run into the 2011 election, and the SNP captured that issue in the run into the election. It was in the aftermath of that that they brought rush through the legislation against the will of all the Opposition parties in the Scottish Parliament. Are you discarding the fact that bullets to Neil Lennon in the Post sent a parcel bomb to Paul McBride QC? All because, particularly with the Deputy Presiding Officer and Paul McBride, they had a specific Celtic connection. Are you actually saying that discounting those and things weren't as bad? Are I exaggerating the way things were back during that period? No, if you actually listened to what I said, I said that I wasn't discarding. Those were very serious incidents and they were quite correctly dealt with by police and prosecutors at the time. What I've tried to do is to put behaviour at football in context over a 40-year period, and I believe that the behaviour was much more serious going back to the 70s and 80s. It's dramatically improved since the advent of the Taylor report and the aftermath of the Hillsborough disaster in 1989 in all-seater stadiums. I don't downplay any misbehaviour at football matches of recent times. I think that they've got to be treated seriously, but I think that we need to put it in context. What we saw was a complete overreaction from the SNP Government when they pushed the legislation through against the will of all the Opposition parties. Kelly, do you believe that it's correct for anyone to sing a song supportive of active terrorism at football? My position is that, in going to football, I go there as a football supporter and I sing football songs and I believe that that's what everyone should do. I think that if anybody sings in a hateful manner towards a religious group or based on race or sex, I believe that that's totally unacceptable and people should be brought to justice on that. I also believe that people have the right to freedom of political expression within rights. I have to say to you, Mr Adam, that, in advancing that point of view, you do so with some lack of credibility. In 2015, you signed a motion tabled in this Parliament by Kenny MacAskill celebrating the Easter Rising. If you went along to a football ground and you took part in songs commemorating the Easter Rising, you might find yourself spending some time in a police cell. The specific acts of terrorism that I was talking about? I have made my position clear that I believe that people should sing football songs. If people sing in a hateful manner, whether they are out in the street, in a club, in a local community or in a football ground, that is unacceptable and should be prosecuted under section 74 in relation to religious aggravations. I believe that people have the right to freedom of expression as long as they are not participating in a hateful manner. The example that I used last week, which the minister was not able to deal with in relation to the Palestinian display at Celtic Park, is a legitimate right to political expression. I think that that should be allowed. Mr Kelly, when we are talking about acceptable songs, do you believe that the famine song or the role of honour are acceptable songs to sing at football match? I am not going to run through a song book, Mr Nhan, particularly as— Can I stop here? We have now an hour and a half more or less to cover a lot of areas. George Adam, you have indicated that you have areas of interest, as have other members, that you are interested in questioning. In fairness to the person in charge of the bill, Mr Kelly, and to the other members, I would be grateful if members could get on with the line of questioning that they indicated that they had an interest in. I will finish with—you mentioned academics that came along to the committee. Dr Stuart Weighton says that it is a football fan's right to be offensive at football. Do you agree with that? No, I think that, as I made clear, I support—I think that people should sing football songs at the football ground. I do recognise that people have the right to political expression, but they do not have the right to be hateful towards religious groups based on sex or race. I am laying out my position, Mr Adam, that I have made clear throughout that I think that people should sing football songs. I support the right for legitimate political expression, but I do not support hateful songs or hateful actions, whether it is in a football ground or in the street or a local community or outside of a religious venue. If it is not briefly, we will have to move on. Thanks, convener. Welcome, Mr Kelly. You said that you think that people should sing football songs at football matches. If people who do not go to matches find those songs offensive, what would you say to them? What would you mean by the football songs? I would hope if people were singing football songs that were getting behind their club on the pitch, so I am not really seeing the point. What I am saying is that if some of the songs that you are declaring are football songs, if other people in the public find them offensive, is that just tough for them? Well, due respect, I do not think that you understand the position that I am outlining. What I am saying is that as a football supporter, I go to the football to support my club, and in terms of doing that, I would sing football songs that are getting behind the team on the park. I do not understand how that is offensive. You have heard a lot about the message that repeal would send, not only in general, but to football fans. It has been suggested to the committee that repeal could lead some supporters to believe that certain behaviours have been decriminalised. How do you respond to that? I think that there has been a lot of discussion about the message, and I think that there has been a lot of simplification and generalisation around that. I actually think that the message around the legislation is quite a weak one, because if you look at it, the current legislation only has the support of one political party in this Parliament, and only the support of one political party at the time of the 2011 bill passing. That continues to be the case. The legislation has also been called into question by legal groups, so, like the law society, it is bad law. There are serious issues about the overreach of the law. What we have in relation to the legislation is a disjointed approach. We do not have full support from political parties, we do not have full support from legal organisations, we do not have full support from football supporters and football clubs. We have not been called into question by human rights groups. I think that one commentator described this as a worst piece of legislation that had ever been passed by the Scottish Parliament. When you see such a divided opinion on it, that reinforces that view, so we do not therefore have a strong message. In terms of moving forward and dealing with the issue about decriminalising certain actions, I think that what is needed is a more unified approach. For example, hateful songs against religious groups can be prosecuted under section 74 of the 2003 Criminal Justice Scotland act. Everyone would agree on that. I think that getting all the different groups behind that one message, that those hateful songs are not appropriate, that there is legislation to deal with it and also tie it in to education and better collaboration between fans, police and clubs. I think that that is a much more effective way going forward. Just press here for me on the actual message. Are you aware or has anyone induced any evidence of any data on what message is actually heard by football fans? If we accept that we can isolate who is singing this to within a reasonable population. Has anyone gathered any data on what they understood when the legislation was brought in, what message was heard by those groups and what those groups would hear if that legislation were taken away? Are you aware of any data having been collated? I do not have data directly in relation to that, but what I would say is that the message that those supporting the legislation have sought to put out is that this is about tackling anti-sectarian behaviour, despite the fact that it is not stated on the face of the bill and it is not defined in the bill. I think that it has failed in that regard because if you look at the latest statistics on religious hate crime that has been provided to the committee, in terms of 2016-17, there are 719 charges in relation to religious hate crime and that is the highest that has been in the last four years. That is a serious problem. Only 46 of those relate to the offensive behaviour at football acts, so less than 7 per cent of the charges relate to football. To me, what that demonstrates is that we have a serious problem with religious hate crime in Scotland and it is something that should concern all of us. However, the idea that it all carries on around a football has been blown out of the water by the fact that only 7 per cent of the charges relate to hate crime. In terms of those who are at football, there is a confusing message. As some have said in evidence, it is confusing as to what criminal activity is and what will be captured under the act and what not. The reality is that, as I have said throughout, my opening position is that people should sing football songs. However, I recognise that people sing a range of songs, but people are not clear as to what is criminal and what is not criminal under the act. That is also reinforced as a law society by the confusing definitions in terms of what is offensive behaviour. There was just a point that I was looking to clarify. You mentioned your response to George Adam and you talked just there about a football song. You said that you have been clear on what you have been trying to say, but George Adam asked specifically about the famine song and role of honour. I have to admit that I do not regularly frequent football matches a lot when I do it. It tends to be at Breach and City, but it is just to clarify. Can you explain what to you is a football song? Do those songs count as football songs and what would fall into that bracket? I am getting advice from the clerks that we need to stick within the provision of the bills. We have already covered the ground and we are not going to move much further on it. There are some things that I would like to ask, but I think that that is an important point of clarification and to understand what the member means by that. It is important to get that on the official record. I think that I have already been quite clear. I have said very clearly that a football song is a song relating to football and getting behind the football team on the pitch. I have also said very clearly that hateful songs are abusive towards religious groupings or based on race or gender are totally unacceptable. I have also said that I understand and accept that there should be freedom of expression. Leaving aside hateful demonstrations or songs, there should be freedom of expression. For example, at the 1988 Scottish Cup final, I took part in a political demonstration against the Conservative Prime Minister, Margaret Thatcher, who was presenting the trophy that day. There was a red card display. That is a legitimate act of political expression within a football ground. Some might argue that those acts might be criminalised under a legislation. I believe in the right of freedom of political expression. I do not believe that that should include hateful songs or demonstrations, but I support the idea that people should concentrate on getting behind their football team. Just to follow on from Liam Kerr's questions about the overall message that is sent out, we received evidence, as you will be aware, from a number of different groups. The submission from Church of Scotland that repealing the act without replacement would be a symbol that our elected representatives do not think that behaving offensively or sending threatening communications is problematic. At a time of rising levels of antisemitism and Islamophobia and where sectarianism remains a reality of life in Scotland, the wider implications of repeal should be taken into account. There were no by no means alone in that with Stonewall, the Scottish Council of Jewish Communities, among others, expressing similar concerns. How would you respond to the concerns that those groups have put forward? I do not favour keeping in place a piece of legislation, a, that targets football fans, and b, that is outlined to Mr Kerr. I think that he has got quite a weak message around it. In terms of protections to particular groups, in relation to section 1 to 5, as the Law Society and the Human Rights Commission have reiterated, the legislation is open to potential legal challenge, so it is weak in that regard in relation to section 6. As the police told us, it is too tightly drafted and it is not really used much at all. The communications act is used in terms of threatening communications, so I do not believe that keeping in place a weak piece of legislation is effective in terms of offering a message or b, any protection. The way forward is to reinforce the credible existing laws, to do more in terms of education, to get across a message of tolerance in society, and for clubs, police and fans to work together, as was suggested by the Scottish Football Supporters Association. I believe that to be the way forward. I do not think that it is fair to pick on some of the evidence that we have heard and some of the people that gave evidence. By doing that, you are suggesting that the other groups who gave evidence are somehow less legitimate. Obviously, we have reviewed quite a lot of legislation through the committee, and everybody is entitled to express their opinion, and all those views are legitimate, in spite that you do not just pick and choose the ones that agree with your point of view. I have another question, and it was about some of the questions that you put to the minister last week, because we have heard a lot about the rights of football fans and their views of the legislation. It was suggested through your line of questioning to the minister last week that, if you do not attend football regularly, you cannot really have an opinion on that act. The behaviour of fans at football has a wider impact. It has an impact on the people that are either commuting to the matches. We heard about some of that and some of the incidents that, for example, happened on trains. What about the rights of those people? Does that factor in your thinking at all? Is it right that you do not think that, by pushing the repeal of the act, it ignores the wider rights of people in the community and, for example, people just commuting on the train? Could you please stick to the line of questioning more or less? There is some latitude, but you are being most unfair and selfish to other committee members when you are going off at a tangent when we have so much to cover. I can allow as much latitude as I can, but please bear that in mind. Mr Kelly, please. I take all the evidence that has been submitted seriously. I do not know where you are coming from in saying that I am picking against particular bits of evidence. Obviously, I look at the evidence very seriously. For example, you quoted Ms Gougeon last week a statistic that there had been a 50 per cent rise in football-related incidents in public transport. I was not able to source that evidence, but in looking at the stats provided to the committee, I actually see the incidents in public transport of Gundown behalf. It is important to be accurate in relation to the committee. I think that, in terms of the general point, people are offered better protection and will feel safer if there is effective legislation in place. That is not effective. It is an incredible legislation. Until we get to a position where we have legislation on the issue that we can get a more unified approach on, and we also look at the wider issue around religious hate crime, it is only then that we can start to move forward credibly. It is following on Mary Gougeon's question. She fairly articulated the concerns that have been raised with us about the message that might be sent if we repeal the act as it stands. However, is there not a risk—I think that we all accept—that legislation can send a strong message, but is there not a risk that we raise false confidence, false expectations about the protections that are provided if we indulge the view that, in this case, the 2012 act provides the protection that, from all the statistics that we have seen, it patently does not? Is that not equally a risk in terms of the message that we send out? I think that it is important to understand that it is not just the message, it is not just the legislation on its own. As I have said in answer to previous questions, looking at the statistics, I was shocked to see that the religious hate crime stats had been higher now than they have been in each of the previous three years. I think that there is a real issue around that. People who were supporting the original legislation on a well-founded basis were doing it on the basis of trying to tackle religious intolerance. I think that what it shows is that you need a much wider discussion. For example, I think that there is no information provided to the committee in those 719 charges. There is no analysis as to why that is happening. I think that we need an assessment of that, and we need proper action through the Scottish Government justice policy, not just legislation. Can I ask you about the feedback that you have had from fans who support your repeal? I am a bit confused as to what it is that they want to do when they go to a football match. How is the act impeding their enjoyment of a football match? First and foremost, the main objection is that we have a piece of legislation that targets football fans. One of the witnesses in evidence said that if you look across Europe and look, for example, at areas such as Poland and Turkey where there are serious crowd disorder problems, they do not have legislation in place in those countries. People fundamentally object to the idea that we have a piece of legislation in place that targets specifically football fans. The other thing that I would add to that is that it is linked to the legislation and the way that it is being policed. Quite interestingly, this morning, we heard from the former justice secretary, Kenny MacAskill, saying that the police were run ragged and they do not have time to investigate low-level crime. I think that people find it staggering that we spend £2 million supporting the police unit that films supporters going into the grounds, recording CCTV, when people have been told that we might not have the resources to deal with anti-social behaviour or acts of vandalism in the street. In summary, football supporters do not like the fact that they specifically are being targeted by legislation, which is pretty unique in Europe, and that, in instances, they are filmed going into the football grounds, and that deteriorated the relationship with the police. In your opening statement, you said what some people would term sectarian singing. I have been to football matches and I have heard sectarian singing. What I would term sectarian singing, do you deny that sectarian singing does not happen at football matches? No, I never said that. Some people would term sectarian singing. I just want to know what you think sectarian singing is. I think that we all do respect and are made clear throughout this evidence session that I regard the singing of hateful songs against religious groups, whether it takes place in the football grounds or outside a religious venue or in a club or pub. It is totally unacceptable and it should be prosecuted. Section 74 of the 2003 Criminal Justice Scotland Act is there in order to do that. I cannot be any clearer, but I do not find that behaviour acceptable. Can I go on to ask you if the repeal bill is passed? What will happen to the cases that are currently going through the system? What do you think should happen? As I have said in the transition arrangements, any cases that are currently going through the system should fall at the date of royal assent. Have you had any contact with that? No, I have not had any contact with the Lord Advocate. I have run a consultation on the bill, but there has not been any feedback from the Lord Advocate on that. You have said quite a few times that the act is not needed because it is crimes committed under the act are covered by other legislation, so would it be your intention for those currently going through the court to be tried under that existing legislation? Is there any precedent for something like that to happen? That is really a matter for the legal authorities to consider as the bill makes its way through the Parliament. My point of view is that, as I have backed up by the law society, is that pre-existing legislation could capture all the cases that came through in 2016, 2017 and certainly any on-going cases. What I still struggle with is the fact that you say that crimes of hate, songs of hate and discrimination should be legislated against, and yet you want to repeal an act that specifically does that. I do not get that. If that is what you believe, why would you object to that act? In terms of good law, I believe that if someone commits a hateful act outside a religious venue, in a club or a pub, in a local community or a football ground, that is unacceptable and can be prosecuted under section 74 of the Criminal Justice Scotland Act 2003. I believe that one piece of legislation is more effective than two pieces of legislation. Why do we need different pieces of legislation to prosecute unacceptable behaviour in different venues? I do not understand that. What is why you should care about that that I do not understand? Because I care about good law and good practice and I think having one law covering the offences in all these places is more effective than two laws, particularly when one of the laws in terms of this act is so discredited. Ben Macpherson. Good morning, convener. You mentioned the issues around section 1 that you have highlighted. Have you received any representations from fans regarding the Lord Advocate's guidelines? I think that people in general feel that in terms of obviously the Lord Advocate's guidelines are not the legislation and therefore the legislation is what the courts will give primary priority to. What fans are concerned about is the interpretation in terms of the legislation and the power that that gives to individual police officers. Essentially, as we heard in one of the previous evidence sessions, police officers have had to be trained in terms of what may or may not be offensive behaviour. We have a situation under the act where, if people begin to sing a song, what the police officer requires to do is to get himself in the mindset of, is this offensive? Would a reasonable person be offended? Is this likely to incite public disorder? He has to think that he is training manual. I do not think that that is effective law. The concerns that the supporters have are that there is just a lack of clarity over what is criminal and not criminal activity in this act. I have the Lord Advocate's guidelines in front of me but I will not read them out for time issues of time. In your policy memorandum, you suggest that the bill will reduce the fear for some attending football matches. The Lord Advocate's guidelines are very clear about what behaviour is criminalised under the act, hateful behaviour, threatening behaviour and other offensive behaviours in relation to race, colour, nationality, ethnic origin, sexual orientation, transgender identity or disability. In removing those protections, what I am interested in is how can your bill reduce fear for some people attending football matches other than reducing the fears of people being caught who want to indulge in such behaviour? It reduces the fear because it has taken away a piece of legislation that is not working effectively in its targeting football fan. I do not think that the law is as contested as this one is then it is effective in giving people proper protection. I think that reinforcing the more credible existing legislation would be a more credible way going forward. I think that there continues to be confusion as to what is legitimate and not legitimate under the act. We heard from the beamist representative and I have reiterated throughout this in terms of hateful behaviour that is unacceptable and should be captured under the act. However, there are instances where people are participating in acts of political expression and celebrating their culture and particular dates. There is a lot of confusion as to whether those acts are criminal acts or not under the legislation. I think that that is an important point. I am interested in what behaviours you believe that the act prevents fans from displaying. I know that that has been asked several times already, but it is still very vague and ambiguous what you are saying that it cannot be undertaken and displayed. I am very clear on that. Any hateful action towards groups or individuals is unacceptable and can be captured under pre-existing legislation under this law. That is the question that we are all interested in. Is it a case of context sometimes? Depends on context, something could be hateful, some situation, not in another? That is a point that the law society and a number of legal representatives have made. If you take the example that I gave to the minister last week, where there was an act of political demonstration in support of— Under this act, in terms of what happened last week? Sorry, in terms of the Palestinian display. As I said to the minister— I do not think there was. No, that is a point that I was going on to make. As we said at the time, my police concluded that there was no action to be taken under this legislation. People looked at that and looked at the displays of support for Irish nationalism, Scottish nationalism. I gave the example of somebody with a Catalan flag being removed from Ibrox. There is confusion as to what is a legitimate expression of political support and what might be criminal under the act. Of technical questions to get to on the provisions of the bill. I will get on to the next points that you have asked me to probe right now. Now would be helpful on this. So I think that that point about confusion is an interesting one. As you know, the Scottish Government remains open to changes to the legislation and, based on evidence, and that the ministers made that point but also stated that no suggestions for amendment have been forthcoming. I am just really interested in why—I have stated today that you disagree with hateful behaviour at football matches. That is the same view of the minister and the Government. Why was there not a constructive process undertaken to try and amend the 2012 act? Why go for the very fundamental view of abolition? Surely we can work together as legislators in this Parliament with the Government to try and improve existing legislation and be responsible in that way? I suppose that the fundamental difference between me and you, Mr McPherson and myself and the Government is that I disagree with the principle that we should have legislation targeting football fans. I have never been convinced of that case and that is where my fundamental disagreement is. In addition to that, as I have outlined, I do not think that the legislation works well in practice. You are against the offensive behaviour, you are against the threatening communications but it is the football part that you have a real issue with. So why not bring forward constructive amendments to try and engage in a wider process around that? As I have said, I fundamentally disagree that football fans should be targeted by legislation. In terms of behaviour, I accept that, as I have said, if there is hateful behaviour in the street or in the football ground, that should be tackled. However, I think that that can be tackled more effectively using pre-existing legislation and with a more unified message than the message that comes out from the controversies around that legislation. I think that the gaps in your argument are quite significant with respect. We really must move on. Mr Kelly has made it clear that he does not agree with specific legislation on tackling football. I am about to come on to the last point. One of the significant criticisms that we have heard from witnesses—not my words—is that there is no alternative being proposed with regard to tackling behaviour at football matches if you are successful and the current legislation is repealed. Is that a fair criticism to say that there is no alternative? It is a fair criticism, as I have consistently outlined this morning. I do not think that this is about the repeal of the legislation and then the matter finishes. I have said that what is then needed is that we need a more unified approach. I am quite prepared to work with other political parties. We need to bring the football clubs and the fans and the police together. There are three strands that are needed. We need to reinforce the more credible pre-existing legislation, and we need a more unified message not just coming out of this Parliament but from others who are interested in tackling religious hate crime. We also need more focus on a message of tolerance in our education system. I would take the cameras off the police fans and use the money to invest in anti-sectarian education. Thirdly, as the Scottish Football Supporters Association outlined, we need a more collaborative approach between the supporters, the police and the clubs. I think that that relationship has deteriorated in recent years, and we need to bring it together. I think that those three strands are the alternative. To either support the legislation in full or support parts of the current legislation, Police Scotland, FFSC, Stonewall Scotland, Equality Network, Scottish Women's Council, Victim Support Scotland, the Church of Scotland, the Scottish Council of Jewish Communities, the Equality and Human Rights Commission, who all think that we should be looking at an alternative and collaborating, perhaps waiting until after the Brackendale review, rather than this very fundamental approach of abolishing the current act. They are all wrong. Is that the assessment? A question on the Brackendale review, and we will move on to that later. I think that the members are aware of the evidence that against it is not moving us forward. Mary Cushon, please. Mr Kelly, how would your proposed repeal of section 1 of the 2012 act provide legal certainty for football fans as to what is and what is not an offence within the context of football match, and indeed how can greater clarity for fans be achieved? I would point you to the Law Society submission, which states quite clearly that all 377 charges in 2016 could have been captured by pre-existing legislation. As I said in answer to Mr McPherson and others, I do actually believe that it is good law or effective law to have one set of legislation for inappropriate behaviour in a football ground and one out in the street, so I believe that the existing laws are more credible and will provide legal certainty. As the Scottish Human Rights Commission pointed out, there are potential ECHR breaches if this legislation were to continue, and legal certainty was one of the issues that they highlighted that was potentially open to challenge. I believe that if we take the legislation of the stocks and use the more credible pre-existing legislation, we will be able to establish greater legal certainty. The Government referred to the distinctiveness of the football culture and the problems that arise as a result of that culture. Has this characterisation had any impact on the way the bill has been perceived by fans and has isolating fans in this way added to the belief that they are being unfairly targeted? In terms of football culture, I reiterate the point that I made at the start, that there has been dramatic improvement in crowd behaviour in the atmosphere around football in the 40 years that I have been attending games. We do not see the same element of public disorder, drunken behaviour, fights in and outside stadiums that we saw perhaps 30 years ago. That has been the case. I am not trying in any way to sugarcoat it and say that there is no bad behaviour or public disorder. However, it has to be seen in context. In that context, football supporters cannot really understand why they have been targeted for legislation. For example, over the period that T in the park was in place, there were 3,600 incidents, including some serious incidents of sexual assault, attempted murder, but there is not any specific legislation targeted at concert goers. When football fans see that, they question the validity of what has been put across here. The Government is also of the view that offensive and threatening behaviour that is displayed by football fans is only at football that you get that behaviour or there is no other sport that attracts that element of sectarian and abusive behaviour. Is that a position that you agree with? I think that what I would say is that offensive or threatening behaviour, whether it takes place outside in the street, in a pub or a club or at a football ground, is totally unacceptable. We need effective legislation and consistent legislation to target it. I fail to understand why we need a particular set of legislation that focuses in and around the football stadium. I do not think that that is effective and I do not think that it is fair to tackle football fans. The evidence that has been had from Bemis has suggested that the 2012 act has had a negligible effect when it comes to tackling hate crime. I note the comments in your earlier response about the figures relating to religious hate crime. Do you think that the act has been successful at all in tackling that type of behaviour? If it is not, what do you think should be put in place? I think that the act has not been successful, as I said earlier. 719 religious hate crime incidents, less than 7 per cent of which took place in and around the football stadium. The scale of that shows that there is still a big issue about religious intolerance. To look at it in another way, if the purpose of the act was to reduce non-football songs, the reality, as we have heard from a number of witnesses, is that it has not been effective in that regard. In some instances, fans are singing more and more non-football songs, so it has not achieved that it is subjective. Who do you think should be responsible for tackling that behaviour then? As I said in the previous answer, we need more emphasis on promoting tolerance and respect in the education system. If we had a proper collaborative approach between fans, the police and the clubs, that can get a message across to fans much more directly, where inappropriate songs are being sung. In discussions between fans and clubs, clubs can be very frank, where it is not possible in the same way for police representatives. Some people have suggested to Kelly that waiting for the Brachadale review on hate crime might make sense before repealing the act. They have suggested that the review might increase the likelihood of some clarity around the act. Why do you think that it is necessary to repeal the act now? The Brachadale review has got a very important job to do in relation to the hate crime legislation to make that more streamlined and efficient and to offer people some of the protections that some of the committee members have spoken about. That is a very important piece of work. However, I think that Liam McArthur made an excellent point when this was being discussed last week. He said that the committee is currently looking at civil litigation legislation and that was driven by the Taylor report, which was produced in 2013. There is a big gap between the production of that report and the actual legislation. I simply do not think that it is acceptable to leave what I believe to be a fundamentally unfair piece of legislation that is not working properly in place until we await the outcome and the work that is going to be driven by the Brachadale review. Mr Kelly, you said that the legislation targets football fans, and you have consistently said that others might say that it uniquely protects football fans and others from what is a serious issue in a Scottish context and recognises the important role that the game has in our country. I just offer that for comment. The question that I want to ask you just now, Mr Kelly, is that way back at the beginning of the evidence sessions, we heard quite a powerful statement from the Crown Office that the repeal would leave a gap in the law. Have you had time to reflect on that? Can you elaborate on what you mean by a gap in the law? Well, the Crown Office and Prosecutor's Service said that there was powers in the current act that allowed them to prosecute certain offences that they would not otherwise be able to. They gave quite a strong statement that the repeal of the act would lead to a gap in the law. I want to know what your view on that is. I have made my position consistent throughout. I do not believe that there is a gap in the law. In terms of the section 1-5 offence, the Law Society has made clear that all offences in relation to that could be captured under pre-existing legislation, going from section 38 through the Criminal Justice and Licensing Act 2004 to section 74, the Criminal Justice Act 2003. In terms of section 6, as we have heard from the police, the threshold—I mean, in terms of section 6, I think that there was a reasonable objective in bringing that forward. However, the act in practice has meant that because of the way in which it has been drafted and the threshold is too high, it is that the police have told us that the reality is that cases have been prosecuted through section 127, the Communications Act, as opposed to section 6 threatening communications. I want to move quickly on to policing as well. Your policy memoranda suggests that the relationship between fans and police is deteriorated. You have mentioned that already because of the act, but you are aware that the act makes no provision for policing. Police Scotland has already told the committee that policing will not change if the act is repealed. We have heard that in evidence. How exactly do you think that repealing the act will improve the relationship between police and fans? As I have said a number of times throughout the session, there needs to be some serious work done to rebuild the relationship between fans, police and clubs. I believe that people, as was suggested by the Scottish Football Support Association, forums should be set up so that those bodies can seriously work together. I also think that there needs to be a serious look at how the matches are policed. As I said earlier, if you have a former justice secretary telling you that police officers are run ragged and that they will not be able to investigate low-level crime, that is a serious issue in itself. The public will then wonder why resources have been wasted on filming football supporters inside and outside the stadiums. The key point is that there needs to be some serious work done by everybody, the supporters, the clubs and the police, to rebuild that relationship. Have you mentioned the rebuilding of the relationship between fans and police a number of times? Are you referring to all fans in the police or certain groups of fans in police, and if it is the latter, would you be able to expand on what groups? Obviously, supporters have representatives who allay us with clubs and the police, but it is important that all fans are involved in that, in the sense that they have an avenue of communication either into their representatives or directly to the police. I think that for it to work, everybody needs to be involved and everybody needs to be committed to it. Do you currently think that all fans have relationship difficulties with the police, all fans that go to football games? No, I am not saying that all fans have relationship difficulties with the police. Obviously, as we have heard in some of the evidence sessions, there are always on-going discussions with the police, so I am not trying to say that there is no communication whatsoever, but it is quite clear that, as a result of the act and the way that matches have been policed, there is more friction between police and fans than there was previously. I think that for to move forward the atmosphere, we need to rebuild those relationships. When we move on to a very brief supplementary on the gap in the law, I do not know if you want to finish your point. I was going to talk about some of the ways that the police have managed games. I think that you have referred to its disproportionate policing. Do you give any examples of why you think that it was disproportionate and why you do not, therefore, believe if you believe that it is disproportionate that it was not the police officers responding appropriately in the best way that they could to those specific circumstances? To give two examples, I have seen an instance where the police will spend a good bit of the game film and supporters. I do not understand what that is for. I have also seen photographs of a police officer at a football game in Perth, where he actually had photographs in front of him, which could probably only be described as fans that might regard as needing more attention from the police. That sort of policing is at odds with what we usually see in Scotland. If the policing is such an issue for you and it is such a fundamental part of this repeal act, why did you call for repealing of the act rather than a review of policing in football? Repealing the act will not change the policing at football, as I have already said. What I have said consistently is that I seek repeal of the act because I think it is unfair that football fans are targeted. I do not think that the legislation is working. I think that separate to that, there needs to be work done with supporters and the police and the clubs to rebuild a better relationship in order that we get more effective policing. In addition to that, if we have a former justice secretary telling us that low-level crime cannot be investigated because police officers are getting run ragged, we need to have a serious look at the amount of resources that we are putting into policing football games. Do you not agree with me that if you had taken to the justice secretary some of your concerns over the policing issues, specifically taking that to him, you could have worked with him and the Scottish Government to come up with a better solution, but perhaps that would not have been as politically emotive for you as going for a repeal of the act? If that has been covered already, we could move on with the rest of the policing questions. Mr Kelly, do you see that police officers must carry out their duties regardless of how unpopular a piece of legislation is? I accept that. The police need to take forward the law of the land that is passed by Parliament, in terms of the legislation, although I opposed it and believe that it is deeply flawed. It is the law that is in place currently. It puts them in a difficult position, as I said in relation to one of the earlier answers, in terms of trying to interpret what is offensive behaviour. I think that there is such a wide definition within the bill. Police officers have had to be trained in terms of what might be offensive. I think that that has put police in a difficult position. Mr Kelly, do you believe that the repeal of the 2012 act will automatically repair the perceived loss of trust between the police and the fans? No, I think that, as I said in answer to Fulton MacGregor, I do not see the repeal of this act being at the end of the matter. I think that there is a job for all of us to do, in terms of putting out a message that religious intolerance is unacceptable, pointing to effective legislation to deal with that. There is a big job to be done in terms of the police and also the supporters, which are two-way streets, to work together in order to build that trust. In my opinion, a programme of work would be required to go on forward following the repeal of this act. Mr Kelly, do you agree that the behavioural problems for policing occur only when certain teams are playing each other? In terms of police resources, what they will understandably do is target the games where there are bigger attendances and they will target the games where there has been trouble on previous occasions. I understand that in terms of the way that you would allocate resources and the games that would be prioritised. I would say that, from the evidence that we have heard, most of the criticism that has been levelled against the act has been in relation to section 1 of the act. We have already covered the issues to whether you believe that there would be a gap in the existing law where repeal to take place in relation to section 1. In relation to section 6, it seems to be more of a nuanced argument that we are getting from those who have taken evidence from. What is your view as to whether there would be a gap in the law where repeal to take place in relation to the defences that are covered by section 6? In terms of section 6, as I have said, back in 2011, I had fundamental disagreements with sections 1 to 5. You could see the point in bringing forward section 6 in terms of threatening communications. Obviously, in that five-year period, there has been an increase in online usage and, sadly, in online abuse, so you can see the case for that. The reality is that it has not been widely used at all. Section 6 has only been 17 cases brought forward in the five-year period. As we heard from the police, the threshold is too high, and, therefore, prosecutors and police are tending to use section 127 of the Communications Act. I accept that in terms of the evidence that we have heard. In relation to cases brought forward for indictment, the potential penalties under this act are greater than the Communications Act. The Glasgow Bar Association indicated that one way forward for that might be to strengthen the powers of the Communications Act in relation to section 127. I recognise that as an issue. I am prepared to enter discussions when interested parties on that, and it is something that I will actively consider prior to the stage 1 vote. That is very helpful, because I think that, in relation to the point that was made earlier about the message that is sent out by repeal from what you are saying there about the motivations that gave rise to the act in the first place, there are perhaps more legitimate concerns about the message that is sent out where section 6 is to be repealed in absence or anything else, then that will be the case with section 1. Is that fair? I do not regard section 6 in a sense as fit for purpose, because if police and prosecutors are not using it, it is not effective. I accept that threatening communications and online abuse is a major issue. Considering the repeal of this act, I need to be confident, as a person who is putting it forward, that there are appropriate measures and protections in place. It is a brief supplementary on the gap in the law and the question that Fulton MacGregor originally raised with you. The legislation is used if someone is on the way to act or watching a football match and they sing an offensive song or use an offensive or abusive language. If an individual was to stand in the middle of a busy shopping centre or stand in the street in a random afternoon and sing that song or use abusive or offensive language, which caused offence, would the police be able to prosecute that? If somebody stood in a shopping centre in the middle of an afternoon, on Tuesday afternoon, for example, when there is not any football taking place and they were hateful and abusive towards somebody's religion, they would be prosecuted under section 74 of the 2003 criminal justice act Scotland. And would they be able to be prosecuted if they used sectarian language? Yes, under that same provision. That concludes our line of questioning. I just make a connection to something that Mr Kelly said earlier. Just with regard to the comments about the act being incompatible with the ECHR, the appeal court considered a challenge under the ECHR and it was rejected. So the Government, the Presiding Officer and the Parliament passed this act as being compatible with the ECHR, so I just wanted to correct that. I believe that you said that it was incompatible. No, no, that's not what I said. Yes, please, please, Mr Kelly. Sorry? What's your response to that? Yes, what I said if you listened carefully, and I apologise if in any way I misled you, but what I said was, if you look at the Scottish Human Rights Commission submission to this committee, which is based on here in the evidence that the committee has taken in relation to this repeal act, they had concerns that there was a potential breach of ECHR, particularly in relation to legal certainty, and that was a serious issue, and that could potentially be a future challenge in relation to— Your concerns have not been upheld because it wasn't accepted? No, I don't think—I think what you're trying to point out is that when the legislation was originally put before Parliament, it requires a compatibility certificate from the presiding officer, and it got that compatibility certificate. I understand that. However, there's nothing to stop once a law is—once legislation is in place and it's been enacted, somebody can bring forward a challenge saying that ECHR has been compromised or undermined, and that's the point that the Scottish Human Rights Commission was making. That was rejected in the appeal court? Yeah, that was one case, but that doesn't stop other people from bringing forward challenges, as both the Human Rights Commission has pointed out and also the Law Society, and I think that that's the point that I'm making, that there continues to be uncertainty on this legislation. It could be open to further challenges. Except what you're saying about previous challenges, that doesn't stop somebody from making a further challenge. That clarification was helpful, and there are no other questions definitely this time, so that concludes our questioning, and I thank James Kelly and the officials for attending. Agenda item 8 is feedback from the Justice Sub-Committee on Placing on its meeting of 7 December 2016. Following the verbal report, there will be an opportunity for brief comments or questions. I refer members to paper 6, which is a note by the clerk. I will be giving that verbal report as the convener of the sub-committee, Mary Fee, was unable to attend. The report is as follows. The Justice Committee on Placing met on 7 December 2017 when it held an evidence session on Police Scotland's custody provision. The sub-committee took evidence from Police Scotland, the Scottish Police Federation, Unison Scotland and Positive Prisons Positive Future. The sub-committee heard about the role and work of the custody division, which was established when Police Scotland was formed. During a previous evidence session on the Police Service's financial planning for 2018-19, the sub-committee heard that, due to a reduction in the geographical locations in which prisoners can be held, prisoners were routinely conveyed over longer distances than would seem acceptable. The sub-committee scheduled the evidence session to consider custody provision in more detail, specifically the impact on the welfare and care of prisoners in custody and during transportation. The sub-committee will next meet on 18 January 2018 when it intends to hold an evidence session on HMI Inspectorate of Constabulary's report on undercover policing. Do members have any comments or questions? There are no comments or questions. We now move into private session. Our next meeting will be on Tuesday 19 December when we will consider petitions and undertake scrutiny of the Scottish Government's draft budget for 2018-19. We will suspend briefly to allow the public gallery to clear.