 Welcome to the Justice Committee's 11th meeting of 2019. We have apologies from Shona Robison, and welcome back to the committee. Bill Kidd, who will be attending, has her substitute. I also note that there is a group of officials from the Jordanian Parliament in the gallery. Welcome to the Parliament and to the Parliament's Justice Committee. Agenda item 1 is consideration of the Management of Offender Scotland Bill at stage 2. I would ask members to refer to their copy of the bill and to the marshaled list of amendments and groupings for this item. I welcome him to our use of Cabinet Secretary for Justice and his officials to the meeting. I note that towards the end of our consideration today, we will need to swap officials supporting the Cabinet Secretary, so I will suspend briefly at that point. We now begin our consideration of amendments. Amendment 2, in the name of Daniel Johnson, grouped with amendments as shown in the groupings. Amendments 54 and 55 are preempted by amendment 93 in the group, minor and technical. Amendment 58 is preempted by amendment 95 in the group, details in relation to monitoring. Amendment 59 is preempted by amendment 99 in the group, details in relation to monitoring. Daniel Johnson to move amendment 2 and speak to all amendments in the group. Thank you very much, convener. I would like to begin by reassuring colleagues that, although there may be almost 70 amendments in this grouping, I probably only need about five minutes to cover off each one. In all seriousness, although there are a lot of amendments in this group, there is actually one simple idea. That is that we should avoid using the word offender in legislation and, indeed, in public statements. That is because language matters. Indeed, the Scottish Government on 1 May 2015 gave a commitment to stop using the word offender in terms of ex-offender or ex-prisner, and they were right to do so. When it comes to people changing their lives and rehabilitating and returning to society, it is important that we give them every opportunity to do so. By continuing to use terminologies such as offender or prisoner when those convictions are discharged and, indeed, once they are spent, we continue to stigmatise that individual and make it more difficult for them to make those changes in their life. The purpose of those amendments is to replace the word offender wherever possible in the bill with the term relevant person, which is much more neutral, and avoids that issue. I do not believe that it has any technical implications, although I obviously appreciate insight from the Government on that point. However, I think that this is an opportunity to use new language and all that. While I understand that much of this bill relates to previous legislation, I do believe that, through drafting, we can use this to draw a line under the use of this terminology to refer to people when they are no longer prisoners and, therefore, help with the rehabilitation and de-stigmatise those individuals and the issues that they face. I move the amendments in my name. I thank Daniel Johnson for bringing forward all those amendments and not spending five minutes speaking to each of them. I think that the points that he makes are very relevant. We heard that in early evidence. We got to the committee about the impact that constant referral to offenders would have on our efforts to try to improve the rehabilitation of those who have served a custodial sentence. I suppose that the only thing that is as well as confirming my support for the amendments is perhaps to ask a question to the cabinet secretary that, in moving to reference to relevant person, I know that, when we were taking evidence, there was a concern that, by talking about offenders, the use of electronic monitoring for those on bail pre-conviction was not possible. I do not know whether that may now be possible as a result of, if the committee supports these amendments, as a result of the changes. It is quite a substantive amendment to be introduced at stage 3. I appreciate it, but I certainly would welcome the cabinet secretary's comments now or perhaps after he has a time to reflect on that. John Finnie. I will be very brief. It is just to say that I will be lending support to Daniel. It was the phrase, language is very important and people have stigmatised enough by their involvement with the criminal justice system without there being a lasting legacy. I think that these are very positive amendments. Liam Kerr. Thank you, convener. I cannot support these amendments at all. I do understand the point that is being made here. I just do not agree with it. The term offender is used because that is what a person is, someone who has offended. I do accept language does matter, but that is why we have to use language that is relevant, the language that says what has happened. Leaving aside that we cannot airbrush the fact that an offence has been committed, a crime has been committed here, but I also point to the seminal work, the rule of law by Lord Bingham, who set out the first principle of law is that it must be accessible, clear and predictable. It must say what it refers to and as far as possible not deal in semantic gymnastics, as Daniel Johnson is trying to do. For that reason, I shall oppose the amendments. Just to answer John Finnie's question, it says in this part that relevant person means an individual who has been convicted of any offence. I totally agree that language does matter, but there is also a need for the law, in my opinion, to be as clear and unambiguous as possible. Although there is a lot of sympathy and sometimes the way that ex-offenders are referred to when there is no need for that to be the case, I think that in this case, in this legislation, to make sure that it is absolutely as clear as possible, then to support this amendment would merely muddy the water. I will be very brief, convener. Thanks for that. It is just to say that I have got a lot of sympathy with Daniel Johnson's amendments here, but I probably would like to hear the cabinet secretaries summing up in terms of if there is going to be any unintended consequences of the amendments before deciding on my vote there. Thank you, to Daniel Johnson for bringing forward those amendments and for the rest of the committee for their thoughts. I will try to pick up on a variety of points that were made. Daniel Johnson, Llym MacArthur, John Finnie and Fulton MacGregor all in some way or another ask about perhaps some of the unintended consequences that may well come about as a result of those amendments, and I hope to be able to touch on that. Before I do that, I will just associate myself with the remarks that were made by Daniel Johnson and to give a differing opinion to that of Llym MacArthur. It is more than just the phrase EU semantic gymnastics. When I talk to those who work with people who have been to prison, who have served community sentences for the offences that they have committed, so have paid their debt to society, but have transformed their lives. They often tell you, and they will have told me, and I am sure they will tell you if you have visited the likes of the wise group and others, that the stigma that they face, even though they have paid their debt back to society, is an incredibly difficult one when it comes to employment in any future opportunities. Life, of course, would let Llym MacArthur back in. I am very grateful, cabinet secretary, because I do not disagree with your point, but does that not go towards the point that the convener made about this bill that is very much dealing with people who are in the offending cycle, if you like? The convener's point was about making a distinction between how language is used after the sentence has been served. Is that not the distinction that you are making there? I will touch on that point. I think that he is not wrong to make the point around the purpose of this bill that is looking at electronic monitoring, so therefore the result of an offence having been committed. Let me try to touch on some of those issues where I can, but I have to say that the evidence given at stage 1, I thought, from a number of organisations, from the Howard League to many others, community justice partners, I thought was very convincing. In that context, we will be supporting the vast majority of the amendments. However, I should say that parts of the language are necessarily tied to language used in earlier reserved legislation, which is an important point to make, for example, in the 1974 act. I want to touch on perhaps some of those technical issues in my speech in my remarks. I do not concede that the term offender is wrong in the context of part 1 of the bill. I am not opposing, as I say, most of those. The term relevant person has the advantage of removing the grounds for misunderstanding over the potential narrowness of the breadth of offender, but I recognise that this was the stage focus of some of the discussion several quarters at stage 1. However, in the course of stage 3 of the bill, I will consider the use of the term relevant person in part 1 of the bill to ensure that the substitution of that term in place of the term offender does not make for awkward reading in conjunction with various references in part 1 to designated person. I have to take a very different position on amendment 63, where a definition of the term relevant person is proposed. By defining the term relevant person so as to include only those individuals who have been convicted of an offence, that amendment would significantly limit the scope of part 1. For my part, I am very clear that part 1 is not limited to post-conviction disposals. Therefore, part 1 could cover pre-conviction disposals such as bail conditions at a later date. For the same reason that I am also opposing amendment 68 to 70, those amendments would alter the long title of the bill to refer only to persons who have been convicted of an offence. It is worth reminding members of some of the background here. Section 1 of the bill explicitly does not refer to quote-unquote convicted persons but rather more simply to persons who are then more generally described as offenders as a shorthand label for use for purposes of this part of the bill. Additionally, section 1 does not refer to disposals as being final or post-conviction. Cases are disposed of at various stages of proceedings and bail is a particular disposal at a specific stage. While presently a list of disposals at section 3 and 2 does not currently include any pre-conviction and disposal section 4 to explicitly states that entries may relate to anything—again, I quote at any stage of criminal proceedings—it is important to note that this statement is obviously and deliberate unqualified by reference to conviction having occurred. I indicated at stage 1 my intention to bring forward an amendment to further clarify this very position in part 1 of the bill. Unfortunately, my amendment itself was ruled and admissible on grounds of scope by the convener when I tried to lodge it. It is, of course, the convener's decision to make. However, I would repeat again that part 1 of the bill was devised with the intention of enabling pre-conviction disposals to be added to the list in section 3 at a later date via subordinate legislation. It was clear or expressed at stage 1 by a number of witnesses and members of the committee for the addition of bail to the list of disposals that can be electronically monitored. I am clear that pre-conviction disposals such as bail can be included, as I say, subordinate legislations. I have made that point and I hope that it is one that other committee members can agree to this. I should emphasise that no disrespect to the convener or the ruling at this stage of inadmissibility to my amendment. At stage 3, the method is, of course, will be in the hands of the Presiding Officer, so in the meantime, of course. I thank the cabinet secretary for taking the intervention. My understanding is that, even in terms of technical grounds, the word offender can and has in the past referred to both people pre- and post-sentencing. That is what gives rise to the opportunity to look at whether or not amendments could be made for those who have not yet been sentenced. Is that the cabinet secretary's understanding as well? I would be interested in any technical insight that he may have as disposal. I suppose that it goes back to what I said a minute ago. Section 1 of the bill does not refer to convicted persons, just refers to persons, which are generally described in almost a shorthand as quote-unquote offenders. What your amendment 63 does is give a definition that relies on post-conviction, whereas we do not want to limit the scope. I think that Daniel Johnson will not want to limit the scope. I think that the stage 1 report in relation to that showed broad support for looking at pre-conviction uses of electronic monitoring as well. I reiterate my support for Daniel Johnson's amendments, just simply the unintended consequences of that. I support most of Daniel Johnson's amendments to replace offender with relevant persons. The exceptions are A, the restrictive definition of relevant persons in amendment 63. They are restrictive changes to the long title of amendment 68 to 70. If amendment 63 and 68 to 70 are pressed, I invite members to reject them. I would ask Daniel Johnson to think about withdrawing them. As was already mentioned by the convener in the opening, amendments 54, 55, 58 and 59 are no longer necessary in light of other amendments that we are making to part 1. In summary, I am supportive of the amendments in this group. The chains of terminology, but as I say, urge the member to withdraw, hopefully 63, 68 to 70, but if he does press them, then for other members to reject them. Thank you, cabinet secretary. You have made reference to the admissibility of some amendments, so it is worthwhile putting out that the management of offenders bill is about post-conviction measures and relates to the management of persons after their guilt is established. The amendments refer to cover pre-conviction before a person has been convicted of an offence. As such, they would contravene one of the grounds for inadmissibility that amendment is not admissibility if it is not relevant to the bill. Those amendments that were rolled in admissible are not within the scope of the bill. At stage 2, as the cabinet rightly says, it is for the committee convener under the standing orders to rule inadmissibility, and for reasons it has been the amendments that the cabinet secretary referred to have been ruled inadmissible. Daniel Johnson, to wind up our presser withdrawal. First of all, I begin by thanking all the members who have contributed to this, and in particular for the constructive manner and for recognising the intent with which I have brought those amendments, particularly those who also disagree with the amendments themselves. In particular, I thank the cabinet secretary for his constructive remarks. Just on the specific points around amendments 63, 68, 69 and 70, I will not press those in particular except his arguments that I would not want to limit the scope. In terms of the arguments that were made by those opposing the amendments, there are two key arguments being made, one on precision and clarity and the other on principle. On precision and clarity, the issue is, as the cabinet secretary rightly pointed out, that the bill deals with people at a number of different stages within the criminal justice process. Continuing to label people and give them one identification throughout that is not helpful, and it lacks precision. On the point of principle, I have one very clear principle when it comes to the criminal justice system. The criminal justice system must seek to rehabilitate and give people every opportunity to do so. When they fail to take those opportunities, the justice system must respond swiftly and robustly, but it must be given that opportunity. Using unhelpful labels, stigmatising labels such as offender, throughout the stages of the process, and once they cease to be prisoners, I think that it is unhelpful. For those reasons, I will be pressing all my amendments, save 68, 69 and 70. The question is that amendment 2 be agreed. Are we all agreed? No. We are not all agreed, there will be a division. Those in favour, please show. Those against, please show. And there are no abstentions. In favour 7 against 2, the amendment is therefore agreed. Amendment 2, 3, 4, 5 and 6, all in the name of Daniel Johnson, not all previously debated, and 7. Daniel Johnson is to move amendments 3 to 7 on block. Does any member have a problem or are object to those being moved on block? Daniel? Moved on block. Thank you. The question is that amendments 3 to 7 are agreed. Are we all agreed? No. We are not agreed, so there will be a division. All those in favour, please show. Against. 7 in favour, 2 against. The amendments are agreed. Call amendment 7, 8, in the name of Liam Kerr in a group on its own, Liam Kerr to move and speak to amendment 7, 8. Thank you, convener. Good morning. The amendment, which I move, seeks to ensure that the court will make available a summary of evidence during the case. Members will recall that, during the stage one evidence, James Mayby of Social Work Scotland told us that. On the information and evidence that criminal justice social work receives to inform our risk and needs assessment and the level of service case management inventory tool, what is sorely lacking is the summaries of evidence that are narrated in court. It is a critical part of enabling the social worker to provide a much more evidence-based and objective report on risk and need. Without it, we are entirely reliant on the offender's version of events. There may be important information missing from that, particularly in relation to victims. What we can learn from that is that summaries of court evidence will be critical to an objective and accurate risk assessment. Without it, the social workers are effectively flying blind with no access to information about how the decisions might affect victims and that they are taking the main source of information from apparently the offender themselves. Colleagues will recall that this was a recommendation in our stage one report. Recommendation 182 said, and again I'll quote, the committee calls on the Scottish Government to explore with the Scottish Courts and Tribunals Service how to more routinely supply criminal justice social workers with summaries of evidence from court cases to inform the preparation of any risk assessments. Such summaries would help for both pre-sentence reports and reports issued prior to release from a custodial sentence. My amendment 78, which I hear by move, seeks to give effect to that recommendation to ensure that social workers have as much evidence as practicable in front of them before making crucial risk assessments and which will inform judge's decisions. John Finnie? Thank you very much. That was an anonymous recommendation in our report, as I recall, and certainly there is merit in it. My concern is that who does the summary? What status does that summary have? I'm trying to envisage a situation where we would know that there's a busy court and there might, ideally, there should in any case be a criminal justice social worker in the court. There's a capacity to do that. I'm also interested in what the status of that summary might be. I don't know if Mr Kerr can help us with that. For instance, would it be open to challenge? It would have a significant impact on the individual to whom it refers. On first reading I went, that's a good idea. It's important that everyone has the maximum information around which to make an informed decision, but it's the mechanics of it that I'm very interested in, and at this stage I'll keep my position open, pending, hopefully hearing from Mr Kerr on some of these matters. Thank you, convener. I'd just like to speak in support of this amendment. When we consider the findings of both HMICS and HMICS following the tragic events around Craig McLean, the important point of information sharing was at the forefront of both of those reports. I think that it's vital throughout the criminal justice system that we have all relevant information available to those making decisions. It strikes me that, having taken the time in a court to carefully examine evidence, do not then use that evidence subsequently is a mistake. Indeed, this is very much in line with one of my later amendments, which look at whether or not bail was granted and subsequent decisions. That follows from exactly the same insight that careful deliberation and examination of facts should be made available and should continue to inform decision making subsequently in the process. Liam McArthur. I thank Liam Kerr for lodging the amendment. As he says, it reflects the conclusion and the recommendation that we made in the stage 1 report. I suppose that, a little like John Finnie, the practicalities of how this is delivered are of interest to all of the committee, but I think that we've got an opportunity, having had the amendment lodged at stage 2, that if there are things that need to be done to adjust it to make it either clearer where the responsibility lies or to ensure that the way in which it's applied is not overly onerous on those who are already working to heavy workloads, that would seem to me to be time well spent. I look forward to hearing what the cabinet secretary has to say, but I again thank Liam Kerr for lodging the amendment at this stage. Rona Watt. Thank you, convener. I will accept that Liam Kerr's amendment is well meaning. I agree with John Finnie and Liam McArthur. It's just the mechanics of it that would worry me. I don't think that it's a bit ambiguous. The purpose isn't terribly clear. It would place an enormous burden on the Scottish Courts and Tribunal Service who would cost them, who would be time consuming, and how would they identify what local authority is relevant? There's an awful burden being put on them. I think that until there's more clarity about this, I couldn't support it. Like my colleagues to my left and to Rona, I feel that the main issue with this is in terms of the practicalities and the mechanism, but I think that it would also be remiss of me not to say as a previous criminal justice social worker that, while I accept that that's a quote directly from James Brown, I do feel that it's perhaps not representative of what he was trying to say at that point. I think that it did come out in the evidence sessions and through the report that there's a lot more to a criminal justice social worker assessment than solely hearing the individual's views, which is an important part of it, but I think that I made the point several times that there was other parts of the assessment. The amendment is definitely well-meaning and I appreciate that it's to support social work staff out there, but I think that again there might be unintended consequences and it might end up not being supportive to the social work staff who are doing the assessment. I'd like to hear the cabinet secretary's views on that before coming to a full decision about this point. I'm inclined to not vote for it. Okay, it seems to me that to have a summary of the evidence presented during the case made available to the local, the relevant local authority is eminently sensible and it does then implement what this committee recommended in its stage 1 report. However, I look forward to hearing what the cabinet secretary says. Thank you very much. Thank you, convener. Can I also echo what other members have said, that the intention behind Liam Kerr's amendment is an admirable one and is one that we could coalesce around. My concern and why the Government can't support is because of the mechanics, the process and the reasons that Rona Mackay, Fulton, John Finnie and Lee MacArthur have asked about. Of course, I'll go into them in a little bit more detail but perhaps it's worth starting just where you did, convener, at group 1. Your phrase was, and I quote exactly, that the law should be precise. This amendment is not precise and that is where we have some challenges and some difficulty. Despite, and let me say it again, the very good intention of Liam Kerr's amendment. Suppose on the mechanics any new information sharing arrangement that has been created within the justice system also needs to demonstrate clear benefits relative to the cost of putting them in place. At present, there is no mechanism across all-court business for routinely collecting and transmitting such evidence from a court. What would that summary of evidence look like? The Scottish Courts and Tribunal Service have commented on this amendment, noting that, while it may be costly for them, potentially time-consuming for the judiciary, they have to participate in such a process, but they have also said that there may be other mechanisms that may be more proportionate for the occasions where it is required, for example, dialogue with court-based social workers may achieve the same effects. In practical terms, I would also note that it is not clear how the court would be able to identify which local authority is quote-unquote the relevant authority at the time of sentencing. On the previous point, you made the cabinet secretary about the opportunity for a court-based social worker to be involved. Of course, the reality is—we saw that at Edinburgh Sheriff Court—there is not a criminal justice social worker in a tent that is at every trial, so it would require a tremendous measure of co-ordination, which might indeed put a further challenge on the many challenges about co-ordination that already exist in our criminal justice system. It is not that there is a criminal justice social worker in every court anyway, as I would understand. I think that the point that we are trying to make is that there will be many—and I will come on this point shortly—that it may not be the case that it is needed for every single case that comes in front of the court, that that summary of evidence would be required, but it may be certain cases where it is needed. I was going to say this at the summing up of the conclusion of my remarks. I think that there is clearly an understandable sense from some quarters in social work that having a read-out of the evidence or having further information could be very helpful to them. I think that we should work together to find the right formulation, both as parliamentarians and with the institutions, namely the Scottish Court of Tribunal Service, to try to find what that appropriate process would be. It is also quite important for me to put on record the fact that it is crucial that we are talking about the process of risk assessment that were led by the considerations of the risk management authority as to what information is the most relevant. Accordingly, we need to be cautious about not pre-empting those considerations and, to John Finnie's point, predetermining the information that is to be considered as having a bearing on risk. We need to avoid prescribing information that may not be required by those tasks with making decisions on electronic monitoring, which is irrelevant or detrimental to the decision that they are tasked with making. The amendment, as it currently stands, would cut across all forms of court-imposed electronic monitoring. A social work report is prepared for the court when considering the imposition of a RLO restriction of liberty order, so social work will be aware of the background of those cases anyway. There seems a very limited merit to their form requiring the court to provide information to a local authority, which they will likely be aware of already. In addition, social work involvement in monitoring an individual serving a community sentence will vary depending on particular community sentence imposed. For example, there is no requirement for a supervising officer to be appointed by a local authority if an individual sentence in RLO, the provision of a summary of evidence in those circumstances would then clearly be a relatively pointless exercise. As I said, the amendment, both the mechanics of it and some of the lack of perhaps precision, because it cuts across all court business, is concerning for me. I do think that it is well in tension. I would ask them to care not to press the amendment to work. With us and other partners that are interested in stakeholders to see if we can get to a position that we can agree on at stage 3, but if he does choose to press his amendment, then I would ask other members to consider rejecting it for the reasons that I have outlined. Presumably, if I press it, just to the point of process, and it gets voted on, it does not preclude us working together at stage 3 to make it? Sure. I am always open to working together with Liam Kerr and other members of the committee, so yes, you can choose to press it and we will see what happens. Of course, my offer, regardless of whether it gets defeated or not, to work with you on this matter is an open one. I am very grateful. Liam Kerr to wind up, press or withdraw. Thank you, convener. My genuine thanks to all the members and the cabinet secretary for the thoughts and comments there. Just to deal with a few of the concerns that were raised, I am not convinced that the purpose is not clear, Rona Mackay. I think that the purpose behind this is completely clear. In terms of the court processes, I cannot see that it is beyond the wit of man to make this work in a court. You talk about the court-based social worker. We can do this. It is possible. I accept and I understand the point about resourcing. I see where that comes from, but members will be aware that I have proposed an amendment 76 later on that deals specifically with the resourcing of the bill. I have no doubt that members will be looking forward to voting for that later on. As a function of that going through, the resourcing will be there that will allow this process to be brought forward. I hear the point being made about assisting all parties to ensure fairness to all, to the accused, to the relevant person, the offender, but also to ensure that social workers are fully resourced and to pick up on James Mabey's point about the information being missing on victims. I think that there is a real concern here that we focus an awful lot on offenders. Yes, of course. For the avoidance of doubt, I am supportive of the direction of travel but, as ever, I am interested in the practicalities. On the status that that would have, would it be open to the individual whom the report is about to challenge it? Would it be open to, for instance, a victim to challenge it? I think that you are right that there are technical solutions that are possible. Who would compile the report, though? I think that I am grateful for the intervention. The point is that the court is quite right. We need to work that out as part of a process, but the principle is that there needs to be almost a quality of arms between the offender, the victim and the social work to make sure that we come to the best decisions and the right resourcing decisions once the process is going forward. The final challenge that I face is from Fulton MacGregor, which might not be helpful to the social work staff. I want to pick up and attach particular weight to Mr MacGregor's comments. It is simply because of his background that I was particularly interested to hear what he has to say. What I would suggest in response, though, is that James Mayby was very clear that, because there are lacking summaries at the moment, the social work is effectively flying blind. It seems to me that this amendment will help. It will improve the system, of course. I am just wondering when you are saying that. I thank you for taking the intervention. Have you had any discussions with Social Work Scotland or any other social workers or relevant agencies about this particular amendment, taking it into today's debate? The answer to your question is no, which is why I attach particular weight to your own contribution, Mr MacGregor. I refer back to the evidence that we have heard in session and the recommendation that the committee unanimously came to put it forward as an amendment. I am simply bringing forward the view of the committee in my view, because it will address the very key point that James Mayby made to ensure that social work is not flying blind. It will help them and therefore we should do it. I move the amendment in my name. The question is amendment 7 to 8 be agreed to. Are we all agreed? No, 7 to 8 be agreed to. Are we all agreed? No. No. Will there be a division? All those in favour, please show. All those against, please show. No, abstentions. 4 in favour, 5 against. The amendment is not agreed. Call amendment 8, in the name of Daniel Johnson, already debated with amendment 2. Daniel Johnson to move or not move. Moved, Camilla. Moved. The question is that amendment 8 be agreed to. Are we all agreed? No, we are not all agreed. Those in favour, please show. Those against. 7 in favour, 2 against. Amendment is agreed. The question is that section 1 be agreed to. Are we all agreed? Yes, we are all agreed. Call amendment 9, 10, 11 and 12 on the name of Daniel Johnson and all previously debated. Daniel Johnson to move amendments 9 to 12 on block. Moved. Does any member object to a single question being put on amendments 9 to 12? No. The question is therefore that amendments 9 to 12 are agreed. Are we all agreed? We are not all agreed. Those in favour, please show. Those against. 7 in favour, 2 in favour, amendments are agreed to. The question is that section 2 be agreed to. Are we all agreed? Call amendment 81, in the name of the cabinet secretary, group with amendments 82 and 83. Cabinet secretary to move amendment 81 and speak to all amendments in the group. Thank you, convener. I move amendment 81. In my name, amendment 81 will introduce electronic monitoring for supervised release orders, SROs. Those orders are a combination of court and post supervisions alongside early release. Previously, there were not one of the court disposals listed in section 3 of the bill, and there were not one of the various forms of licence conditions that could attract an electronic monitoring requirement as listed in section 7 of the bill. An individual subject in SROs is released with the supervision requirement and licence conditions set by the court. Therefore, it would be appropriate for SROs to be added to the list in section 3 of the bill, so that the court could impose an electronic monitoring requirement. That will enable an SRO containing a movement restriction to be electronically monitored in the same way as a movement restriction in any other form of early release licence—parole, HDCE, temporary release, et cetera. Amendments 82 and 83 amend section 3 of the bill to remove all references to quasi-criminal sexual offences prevention orders and sexual harm prevention orders. That bill is aimed solely at criminal proceedings and brings all existing powers to impose electronic monitoring and criminal proceedings into one statutory provision. The policy intention is that the bill does not extend to orders given out with criminal proceedings as different safeguards and oversights apply to criminal and civil orders, including the duration for which any monitoring might apply. The amendment makes it clear that, for orders that can be opposed in criminal proceedings or on application by a chief constable, it is only those orders that go through criminal proceedings route to which the bill applies. That is an important clarification so that legislation as a single statutory provision for electronic monitoring and criminal proceedings does not inadvertently cast any doubt on the ability of any court to proceed with whatever existing powers they may have to undertake electronic monitoring. It is not the intention to insinuate that the court has no power to impose electronic monitoring and civil proceedings simply by excluding all civil orders from the list in section 3 of the bill. Rather, the bill makes no changes to the existing powers available to civil courts when imposing movement restrictions on an individual where those powers would enable civil courts to order the electronic monitoring of those movement restrictions. The civil court, of course, should retain that discretion, so I move amendment 81 in my name. Always at last moment, but, of course, I'm happy. Sorry, I was just seeing if you'd developed the point, cabinet secretary. Just on that, amendment 82 and 83, for my own clarity, if I may, I understood what you were saying, that the SOPOs and the SHPO are covered by different legislation, but is the practical effect of removing them from the legislation that, for example, those subject to those orders, there may be more sexual offenders out on licence or some such who are not subject to electronic monitoring. Is there, in its practical impact, a reduction in the protection of the public by those changes? I appreciate Liam Kerr asking that question. I think that it's really important one. No, it would be the answer. There's no diminishing, no degradation or any detrimental effect in terms of the protection of the public because of what we're doing, as you rightly point out, in asking the question. I hope that I touched upon this in my own remarks. There is, of course—we're not casting any doubt in the ability of any court to proceed with whatever existing powers they have—there is already legislation in place to cover the restrictions of those orders, those quasi-criminal orders, but if the committee indeed needs any further reassurances of that, of course I can provide that in writing, but I'm happy to put on the record that what I'm doing here does not decrease the practical impact or effects of SOPOs or SHPOs. I think that's an important point, cabinet secretary, just that we have on the record that it wouldn't adversely affect the monitoring of sexual offenders either of those amendments in that case. Any other members want to comment in which case, then, the question is that amendment 81 be agreed to, are we all agreed? We are all agreed. Call of amendment 82 in the name of the cabinet secretary already debated with amendment 81, cabinet secretary, to move formally. The question is that amendment 82 be agreed to, are we all agreed? We are agreed. Call of amendment 83 in the name of the cabinet secretary already debated with amendment 1, cabinet secretary, to move formally. Question is that amendment 83 be agreed to, are we all agreed? We are all agreed. The question is that section 3 be agreed to, are we all agreed? Call of amendment 13, 14, 15 and 16, all in the name of Daniel Johnson and previously debated. Daniel Johnson to move amendments 13 to 16 on block. Does any member object to a single question being put on amendments 13 to 16? The question is that amendments 13 to 16 are agreed, are we all agreed? We are not all agreed, there will be a division, those in favour, please show. Those against, 7, 4, 2 against, these amendments are agreed. Call of amendment 80, 4 in the name of the cabinet secretary, grouped with amendments as shown in the groupings. Amendment 95 pre-empts amendment 58 in the group, part 1, terminology, relevant person. Amendment 99 pre-empts amendment 59 in the group, part 1, terminology, relevant persons. Cabinet secretary, to move amendment 84 and speak to all the amendments in the group. Thank you, I move amendment 84 in my name and I'll speak to the other amendments as briefly as I possibly can. These are minor technical amendments that are designed to provide additional clarification on some of the language that's used in the bill to make no substantive change to the operation of the provisions, but I think that they're quite useful for clearing of full understanding of what the provisions say and do. In terms of amendments 84, 85, 86 and 96, there are various references in part 1 of the bill to movement restrictions. The amendments have just touched upon and clarified those references to state that movement restrictions include being at or not being at a particular place. Amendment 87, section 8, subsection 2 of the bill, describes the types of devices that may be specified as approved devices. Amendment 87 provides that this would include devices that measure the levels of alcohol, drugs or other substances taken by the offender, rather than just measuring the presence of alcohol, drugs or other substances in the offender's body. That ties with amendment 98, which I will come to shortly. Amendment 88 adds a further subsection to section 8 of the bill, which provides that any apparatus linked to the approved device can also be prescribed as an approved device under section 8, subsection 1. That will ensure that there can be no doubt as to the legitimacy of using an RF radio frequency box, for example, alongside the electronic tag. Amendment 89, section 9, subsection 3 of the bill, provides that regulations made under section 9 may set out how a device is worn or used by the offender. Amendment 89 provides that regulations may set out how or when a device is to be worn or used. That is to provide for circumstances when the monitoring requirement can become maybe intermittent. Amendment 91, section 12, subsection 2 of the bill, provides that an offender must obey the instructions of the designated person on how a device is to be worn or used. Amendment 91 provides… In particular, amendments 90 and 91 in terms of improving the specificity of the wearing of the device. There is some concern about offenders cutting the devices off or tampering them in other ways. Will that improve the ability to respond to those instances, especially when that is the intention of the individual to tamper with the device in such a way to evade the restrictions that the monitoring is supposed to place on the individual? A couple of things. I will probably come to that specific point when Liam Kerr comes to his amendments on the issue of cutting off a tag or tampering with a tag. Again, some of the unintended consequences around that. In terms of my own amendments both 90 and 91, the change of language is more so to provide sufficient flexibility in how the monitoring might give effect. A designated person may need to provide instruction on intermittent monitoring, so there should not be an effect on whether or not, for example, that individual looks to cut off the tag or tamper with the tag. Again, I can come to that at a later point when Liam Kerr will be moving his amendments in that regard, but it should not have the effect that Daniel Johnson is concerned about in that regard. If I may make progress on the other technical amendments, amendment 92 adds a further subsection to section 12, clarifying that the obligations to wear, use and refrain from tampering with damaging the device includes apparatus linked to the device. Amendment 94, section 14, subsection 3 of the bill states that evidence of a breach may be given by way of an automated document containing relevant information. Section 14.4 states that this includes specific types of information. Amendment 94 changes section 14.4 to state that examples are specific types of information. This is just a minor change, for sense, in the wording of section 14. Amendment 95, section 14.4 of the bill refers to information about the offender's whereabouts at a particular time. Amendment 95 changes this to the device's whereabouts. That is to reflect the logic that the automated evidence of the device's whereabouts rather than the offender's whereabouts, although as a matter. Of fact, the latter will often be easily shown by or inferred from the former. Amendment 97, section 14.4 states a type of information that can be included in an automated statement from the device. Amendment 97 adds to the list the connectivity or working of the device and the wearing or use of the device at a particular time. Coupled with information about the device's whereabouts, that should assist in showing that the offender was wearing the device at the time. Amendment 98, section 14.4 b, provides that automated information includes the presence of alcohol, etc., in the offender's body. Amendment 98 provides that the automated evidence can include the presence or level of alcohol, etc. That ties in with amendment 87 that I explained earlier on. Amendment 99, section 14.4 b, provides that automated information includes the presence of alcohol, etc., in the offender's body. Amendment 99 clarifies this to state that the automated evidence will be the presence of alcohol in the wearer or user's body. That is to reflect the logic that the automated evidence is of the consumption of whoever is wearing the device, although it will often again be easily shown or inferred from the fact that that is the offender. Amendment 100 is a minor correction of a to the at the start of section 146 c of the bill. That summarises the proposed changes made through these amendments, as I said, merely for improved understanding of how the monitoring system is intended to work with little substantive or practical effect to note the concerns raised by Dario Johnson. I can perhaps come to them in a little more detail for the future amendments. I move amendment 84 in my name. Do members have any other comments on those amendments? I wonder, cabinet secretary, if you could clarify just again what 93 does. Just for the avoidance of doubt, does that appear to allow non-compliant prisoners to avoid recall-to-cust today, is that the case? I wasn't moving on amendment 93. Oh, it's not in that grouping. My apologies. Do you have anything of other to say, cabinet secretary? No. The question is that amendment 84 be agreed to. Are we all agreed? We are agreed, okay. I call amendment 17 in the name of Daniel Johnson, who is already debated with amendment 2. Daniel Johnson, to move or not to move. Moved. The question is that amendment 17 be agreed to. Are we all agreed? We are not all agreed. Those in favour, please show. Those against. Seven in favour, two against. The amendment is agreed. The question is that section 4 be agreed. Are we all agreed? I call amendments 18 to 25 on the name of Daniel Johnson, all previously debated. Daniel Johnson, to move amendments 18 to 25 on block. Does any member object to a single question being put in amendments 18 to 25? No. The question is that amendments 18 to 25 are agreed. Are we all agreed? No. We are not all agreed. Those in favour, please show. Those against, please show. Seven, two of these amendments are agreed. The question is that section 5 be agreed to. Are we all agreed? I call amendments 26 to 28 in the name of Daniel Johnson, all previously debated. Daniel Johnson, to move amendments 26 to 28 on block. Does any member object to a single question being put in amendments 26 to 28? No. The question is that amendments 26 to 28 are agreed to. Are we all agreed? We are not all agreed. Those in favour, please show. Those against. Seven, two of these amendments are agreed to. The question is that section 6 be agreed to. Are we all agreed? I call amendment 29 in the name of Daniel Johnson, all previously debated with amendment 2. Daniel Johnson, to move or not move. That move. The question is that amendment 29 be agreed to. Are we all agreed? No. We are not all agreed. Those in favour, please show. Those against. Seven, two of these amendments are agreed to. Call amendment 85 in the name of the cabinet secretary, all already debated with amendment 84. Cabinet secretary, to move formally. The question is that amendment 85 be agreed to. Are we all agreed? We are all agreed. Call amendment 30 in the name of Daniel Johnson, all already debated with amendment 2. Daniel Johnson, to move or not move. The question is that amendment 30 be agreed to. Are we all agreed? Yes. We are not all agreed. Those in favour, please show. Those against. Seven, two of these amendments are agreed to. The question is that section 7 be agreed to. Are we all agreed? Yes. Is agreed. Call amendment 31 in the name of Daniel Johnson, grouped with amendment 131. Daniel Johnson, to move amendment 31 and speak to both amendments in the group. Thank you, convener, when I move amendment 31 in my name. Both of these amendments in this group arise from the same insight and one that I alluded to earlier on in terms of the debate to one of Liam Kerr's previous points, and that is around information sharing. The HMIPS report in particular was very clear and robust about the issues around information sharing with regard to the tragic events around Craig McClellan's death. In that report in particular, I quote, it stated that whilst an assessment process clearly existed, it may not be regarded by some to meet the definition of robust. It went on to say that those making the decisions to release an individual on HGC do not have access to intelligence held by Police Scotland nor is it easy for them to access information regarding any outstanding charges or on-going investigations relating to the HDC application. This situation makes it difficult to come to an informed decision about an individual's overall suitability for HDC. It then went on to make the recommendation that the person charged with making decisions to release someone on HDC should have access to information and intelligence held by Police Scotland, Scottish Courts and Tribunal Service and the Crown Office and Procurator Fiscal Service prior to making those decisions. Fundamentally, what amendment 31 does is ensure that there is an illegal obligation on those agencies and bodies to share exactly that information with SPS and the individuals making the decision as to whether or not to grant someone HDC. Therefore, it is a fundamental importance and it is important to put that in law so that the situation that arose in those tragic circumstances cannot happen again. Indeed, there is a legal obligation and a legal requirement for those agencies to do exactly that and share that information as the inspector of prisons recommended. Likewise, 1-3-1 relates to decisions made in the court process regarding an individual. It strikes me that many of the considerations relevant to the decision regarding whether or not to grant an HDC are very similar to the sorts of decisions that are required when the decision is made whether or not to grant, bail or to remand someone appearing on charges, i.e., looking at whether or not that person is a risk and that there are issues or concerns that may be relevant. We should acknowledge that those circumstances and situations can, of course, change. There is obviously going to be a period of time spent in prison or in another context in which that person can reform so that it is not to say that that cannot happen, but it is clearly or relevance whether or not a judge or sheriff made a decision whether or not to bail or remand someone in those circumstances when someone is making a decision about HDC. I say that, albeit that I recognise that there are issues around the use of remand in Scotland, and I would like to explore that further in what we are considering in those amendments, but that all being said, I think that we should have regard for the information and evidence used by the courts when we are establishing risk relevant to granting HDC and more broadly in terms of electronic tagging, and I think that that is important. I would hope that other members will consider those issues when looking at those amendments. Do members have any questions or comments? I have quite a lot of sympathy with this amendment, but I will be a bit like Liam Kerr's previous one. I apologise if it is a probe and one, but if it is intended as a probe and amendment, I think that it probably needs a wee bit more work in terms of what information would be shared, what information would be relevant to be shared, because I do not see any detail here. That is quite a complicated landscape, but we need to look at a lot more closely human rights and their data protection sharing of information, because it is not just as simple as every bit of information would be relevant. I am interested to hear what the cabinet secretary says, but I think that it is an amendment that has certainly got merit, but I do not know if it is enough for me at this stage. If it is a probe and amendment, as I say, then fair enough it is maybe something to bring back at stage three. It seems to me that those amendments do make the process of our early release more robust, but Liam Kerr… Just to endorse that comment, I think that those are good amendments. I hear what Fulton MacGregor says, but I respectfully disagree. I think that there is plenty in there. I think that it does make the process more robust and I will be looking forward to supporting it. Thank you very much. I once again thank Daniel Johnson for making these amendments to committee at this stage to debate. My concerns around both amendments and I will obviously go into them in a bit more detail around the drafting of them but also again the unintended consequences that they may well have and whether they are necessary or not, so I will try to touch upon those points as briefly as I possibly can. If I turn to amendment 31, a key consideration here is that the sharing of information between criminal justice organisations can, where appropriate, assist those organisations in making decisions in relation to an individual, both pre- and post-conviction, as I said, whether that is necessary. I mean all of the bodies in amendment 31 already routinely feed information into the HDC's decision making process. The information currently shared with Scottish ministers by the Scottish Courts and Tribunals Service for the purposes of HDC includes, for example, a copy of any social work report, a psychiatric report, in that case, that was made available to the court. The police share information, which now, as a result of the review on HDC, includes intelligence information relating to serious organised crime links. Social work routinely feed into the HDC's release decision making processes, particularly through the role and assessment of the home environment into which the individual will be released. Given the breadth of information that is already shared between criminal justice organisations for the purposes of HDC, I am not convinced that a statutory obligation is required. There are also some concerns about the drafting of amendment 31. First, the amendment, as it is drafted, would only require Scottish ministers to request information prior to releasing a prisoner on HDC. There is no obligation to wait for a response or to consider the information provided, although I accept that it is no doubt implied from the underlying terms of the amendment. It is not specific or precise. Secondly, the description of the information that is to be requested is very, very wide, as mentioned by Fulton McGregor. Is there any information that is relevant to the monitoring of the prisoner? It is not clear what specific information should be requested by the Scottish Government or what information should be provided by the relevant organisations. So, while I respect the intent of the amendment 31, I would ask for the amendment not to be pressed. I would be happy, of course, as always to work with the member in advance to stay seated to give reassurances where I can. I got the impression in responding earlier to Liam Kerr's amendment about social work reports that he was not minded necessarily to frame an alternative amendment to the legislation. I get the impression from what he is saying here that the language could potentially be tightened up to address the concerns that he has outlined. Is that the case? Is it more a question of the phraseology and the precision of the amendment rather than the fact that you do not believe that this is best put into the face of the bill? It is the necessity and the precision of the wording as well. I am not convinced about the necessity for it, because there is a lot of work going on around the risk management. If I put that to side, then the language, the unintended consequences and the technical drafting of it gives me concern. What I would be happy to do is engage in dialogue in advance to stay seated to give reassurances, but it may well be that despite those reassurances, members still want to bring amendments forward at stay seated, but hopefully at least having that discussion in advance of stay seated will help to inform many potential amendments that come forward the day after. If I will quickly just touch upon amendment 131, the decision to release or refuse to release someone on bail is obviously taken at a different point in time by a different person for a different purpose and using different information compared with the decision to release someone on HDC. Someone may not be granted bail because, just to take one example, they have been assessed to be a risk of non-appearance at court, because they have a chaotic lifestyle at a time. That is a very different judgment to determining whether somebody, for example, has a risk of harm. Those are crucial and important differences. I am grateful for the cabinet secretary for taking the intervention. Would the cabinet secretary, nonetheless, acknowledge that someone's propensity to disregard previous bail conditions should be an important factor in the overall assessment? Yes. I accept the point that John Finnie makes. I suppose that the point that I am trying to make is that there are different considerations that have to be taken depending on whether it is bail versus any other monitoring that may well take place. I think that those are important to not just put on the record but to recognise—I am not convinced that amendment 131 recognises—that if he wants to come back in, I will allow him to. I am grateful. I was talking about a history, a pattern of not adhering to bail conditions, which ultimately results in a custodial sentence. At some time, there might be consideration given to early release and home detention. Surely, it would be a factor—I mean, I am not saying that it should not apply—that the person should be refused simply for previously having offended against bail, but it is relevant. Yes. Again, I do not doubt what he says and I do not take away from what John Finnie says that it is relevant, but, again, there are different considerations. Not everybody, of course, will have a pattern because it may be the first time that they are in front of their courts. It is notwithstanding all of that, and John Finnie's point on the record, it is an important one. I suppose that the final point that I would make on amendment 131 and any decision by this substantive point that I would try to make is that any decision by a public authority must be made in light of the relevant information. That is irrelevant. To the matter at hand, it should frankly be disregarded. Amendment 131 risks placing an obligation on Scottish ministers to consider an information that, in many circumstances, may be irrelevant to the decision to release a prisoner on HDC. That could potentially leave a decision to release, refuse, HDC at risk of legal challenge. Moreover, it would replace, I should say, an administrative burden, also a financial burden on Scottish Courts and Tribunal Service. Collecting the data would be likely to involve time from your judicial member in recording this in a transmittable form. Accordingly, I would ask that amendment 131 is not pressed and if pressed, it would urge the committee to reject. In summary, both amendments 31 and 131, I believe that we should allow the work that is currently under way with justice partners looking at HDC guidance and governance to conclude and should be led by the risk management authority. They are the body that can best provide the advice as to the factors that have the greatest relationship to risk. Prescribing what information should be first is not, in my view, the correct approach. I would say to Mr Johnson that I recognise the desire to have some on-going parliamentary involvement in those issues. We are not due to discuss the convener's amendment 130 that seeks to oblide Scottish ministers to prepare statutory guidance on HDC and have it laid before the Parliament. I have to say that I am minded to support that amendment. If Mr Johnson is content not to press his amendment here today, then I am happy to work with him and the convener on that amendment to find a form of words that sets out what HDC guidance should cover in terms of information exchange. Daniel Johnson, to wind up, press or withdraw. Thank you very much, convener. Let me deal with amendment 131 first and then come to 31. I recognise much of what the cabinet secretary says in 131. I think that there is a broad principle here. One that the committee has encountered and a number of times where there are decisions and information available to the courts that are subsequently not accessible by subsequent decision makers. I think that there is a point there that needs to be addressed. I recognise that that is a much more complicated process than perhaps amendment 131 sets out. Therefore, at that relevant point, I will not be pressing amendment 131 on that basis. However, the cabinet secretary just mentioned one thing, which was the need to bear in mind the risk management authority looking at risk factors. Turning to 131 and the issues raised about the broadly stated nature of that, the reason that amendment is broadly stated is exactly for that reason. I think that it is important that legislation is flexible. Putting specific risk factors on the face of the bill and in black letter law would be an error. That is precisely why that amendment is structured as is with subsection 4, which has allowed Scottish ministers by regulation to make further provision for the purposes and connection of this section. That is precisely so that ministers can specify in more detail and in practical detail and keep under revision exactly the nature and manner in which information must be shared by them and, indeed, therefore with SPS, because SPS is discharging Scottish ministers duties with regard to much of this bill. Therefore, I will be pressing amendment 31. I am very much aware of what members have said about the lack of specification in this. That is deliberate. I think that it is important that this legislation is flexible. I think that subsection 4 enables that. More broadly, although the minister stated that it does not take recognition of what is happening and whether or not it is necessary, I would argue that the reports made by HMIPS and HMICS spell in very particular detail exactly why that is necessary, because that is a situation that failed. That is a situation that failed with tragic consequences, where information was not shared in a timely or relevant manner and certainly was not acted on. Therefore, given those failures, we must put into law to make sure that there is a legal requirement so that information is shared so that it can be acted on. That is why it is necessary for this to be put into law. It is not to say that what is or is not happening. It is simply to state that it must happen. Sorry, was the cabinet secretary wanting to come in? It was just on that very point that I mentioned in my remarks. Again, the good intention behind what Daniel Johnson is trying to do might not actually have the effect that he is trying to bring forward. All his amendment would obligate the Scottish ministers to request that information. That does not mean that the information would have to wait for that information to come back to make a decision on the HTC release. Of course, there would be consequences to that, but the wording in itself is simply about requesting, as opposed to having that information come back, digesting it and poring over it, then making an informed decision based on that information. The practical effect might not fulfil exactly what he articulates. If I might slightly impudently reply, I am sorry to say that the minister has such a pessimistic view on how other public bodies may respond to ministerial requests, but in all seriousness, I think that the point here is that a number of measures and powers, as stated in law, are set out in terms of requests. Subsequently, I think that if the principle is correct, I would be more than happy to look at amendments to this at stage 3 to improve how robust that may or may not be. I will be pressing this amendment, because I think that it is important. If it does fail, I will be seeking to look at how it could be improved and ripped back at stage 3, because I think that it is of fundamental importance. The question is that amendment 31 be agreed to. Are we all agreed? Yes, we are all agreed. Amendment 31, in the name of Daniel Johnson, is already debated with amendment 31. Daniel Johnson, do you move or not move? Not moved. That amendment is not moved. Amendment 32, in the name of Daniel Johnson, is already debated with amendment 2. Daniel Johnson, do you move or not move? Not moved. The question is that amendment 32 be agreed to. Are we all agreed? Of course. We are not all agreed. There will be a division. Those in favour, please show, and those against. Amendment 72 is agreed. Call amendment 86, in the name of the cabinet secretary, already debated with amendment 84, cabinet secretary, to move formally. Moved. The question is that amendment 86 be agreed to. Are we all agreed? We are all agreed. Call the amendment 33, in the name of Daniel Johnson, already debated with amendment 2. Daniel Johnson, do you move or not move? Move. Moved. Moved. The question is that amendment 33 be agreed to. Are we all agreed? We are not all agreed. Those in favour, please show. Those against. Amendment 72, in the name of this amendment 33, is agreed. Call amendment 87, in the name of the cabinet secretary, already debated with amendment 84, cabinet secretary, to move formally. Moved. Moved. Yeah. The question is that amendment 87 be agreed to. Are we all agreed? We are all agreed. Call amendment 88, in the name of cabinet secretary, already debated with amendment 84, cabinet secretary, to move formally. Moved. The question is that amendment 88 be agreed to. Are we all agreed? We are all agreed. The question is that section 8 be agreed to. Are we all agreed? We agreed. Call amendment 34, in the name of Daniel Johnson, already debated with amendment 2. Daniel Johnson, do you move or not move? Moved. The question is that amendment 34 be agreed to. Are we all agreed? We are not all agreed. There will be a division. Those in favour? Those against. Call amendment 87, in the name of the cabinet secretary, already debated with amendment 84, cabinet secretary, to move formally. Moved. The question is that amendment 89 be agreed to. Are we all agreed? We are all agreed. Call amendment 35, in the name of Daniel Johnson, already debated with amendment 2. Daniel Johnson, do you move or not move? Move. The question is that amendment 35 be agreed to. Are we all agreed? We are not all agreed. Those in favour, please show. Those against. 7, 2, in favour. Amendment 35 is agreed. Call amendment 36, in the name of Daniel Johnson, already debated with amendment 2. Daniel Johnson, do you move or not move? Move. The question is that amendment 36 be agreed to. Are we all agreed? We are not all agreed. The question is those in favour. Please show. Those against. 7, 2, which means that amendment 36 is agreed. The question is that section 9 be agreed to. Are we all agreed? We are all agreed. Call amendment 37, in the name of Daniel Johnson, already debated with amendment 2. Daniel Johnson, do you move or not move? Move. Move. The question is that amendment 37 be agreed to. Are we all agreed? We are all agreed. Those in favour, please show. Those against. 7, in favour, 2, against amendment 37 is agreed. Call amendment 90, in the name of John Finnie, in a group on its own, John Finnie to move and speak to amendment 90. Thank you very much indeed, convener. I move amendment 90 in my name. This is fundamentally the position that you take in relation to public money, whether you feel that there is a role for the private sector in it. I think that in the course of our scrutiny of this legislation, it became very apparent the reliance that there was in the private sector to provide information, both in advance of the halt that we took in scrutiny and thereafter. It is a very pivotal role. I do not think that there should be a role for the private sector in such an important area. I am not alone in that. Indeed, the party of government has a very lengthy list of their starting in 1999, with the SNP remains totally opposed to private prisons. In 2001, when it passed a motion calling for a halt to the privatisation of prisons, 2003 manifesto says, First, we will ensure that public services should just be that. Public government money intended to provide public services must do that and should not be wasted through inefficiency or taken out of the existing system to be excessive private profit. We go on to the cabinet secretary in 2005, when the then cabinet secretary for justice in a BBC documentary in relation to Her Majesty's Prison Kilmarnock said public safe space is too important an issue to be at the whim of private profit. Manifesto in 2007, we are committed to public loan and run prison service. In 2007, blocking the replacement of Bishop Briggs and so on and so on. Most recently, one of the cabinet secretary's predecessors, in a herald article titled Time to expose the lies behind the clamour for private prisons. What we have is a situation at the moment where two of our most important public services, the prison service and the Scottish Police Service, have this intermediary. I think that that is unhelpful in relation to something as important as community safety. I see no reason why either of those two jointly or individually should be taking charge of this important situation. I know that it is the position of the Scottish Government in recent press coverage that this facility is in any case available to bid for, but that is what is wrong. That is entirely what is wrong whether we are talking ferries, whether we are talking prisons, whether we are talking the service. That should be based on public service and a service to the public, not on who can put together the best bid for a franchise or whatever. I hope that the cabinet secretary will lend his support to this proposal. I have been entirely in line with his party's long-stated position on it, and I look forward to hearing from him on it. Daniel Johnson I am far from being reticent about stalling the virtues of the private sector. I am somebody who, prior to coming into Parliament, worked in the private sector for 15 years and ran my own business, but there are limits to the benefits of the private sector. I would argue that we must be cautious about the role of the private sector generally in public service provision, but in particular in the criminal justice sphere, because of the serious nature with which the criminal justice matters are to be found. John Finnie's amendments are well stated and, for two particular reasons, one is practical and one is a point of principle. On the practical matter, there is no doubt that the issues that we have encountered when examining the issues around the information sharing and how efficient that has been. I would argue that any additional agencies or organisations involved in that chain of information sharing, that sequence of information being passed from one end of that process to the other, is simply going to complicate that. I would question whether there is an advantage or disadvantage for an additional and unnecessary agency or body to be introduced there, regardless of whether it is a public sector or a private sector. In addition to that, there is a point of principle here, which is that it is right for private companies to be earning a profit from the incarceration of individuals and the monitoring of them thereafter. I think that that is a question that does seem to be, and I think that Mr Finnie made a very good case using the party of government's own record on that matter, and I think that he makes the argument very well. The only slight caveat that I would put is that I am not entirely convinced that a third sector organisation or registered charity necessarily improves matters greatly, particularly on the points of practicality, but also in terms of that bidding system. We only have to look south of the... Mr Finnie, would you like to...? Yes. I am grateful for Mr Johnson taking that intervention. It is to give an option, it is not to say that my preference would be public sector, but of course the motivation of a third sector organisation or a charity is not the creation of profit. That is the statutory obligation that is placed on the present provider, profit for the shareholders. I quite agree with that, but there are two other issues that they encounter, especially if you look at probation services delivered south of the border by third sector organisations, both at that point of organisational complexity but also the bidding process in terms of encouraging a race to the bottom. I think that I have meant that probation services south of the border are widely recognised to have degraded. I will be supporting the amendment. I merely raised that point as a question mark and a point of detail, but I think that this is a well-stated amendment and one that I will be supporting. Rona Cymru. I agree with John Finnie's amendment, but I just wanted to briefly point out that at the moment we are still governed by EU law and procurement law, and as such, public and private bodies are entitled to tender. If we were not allowing private bodies to tender, we might be in convention or against that law. John Finnie, do you want to respond? I would simply say that this is a competent motion or it wouldn't be here. Thank you, convener. My view on this, I will be voting against it, which I do not think will come as a surprise. The amendment starts from a flawed position that the public sector is automatically better and more efficient than the private sector. I just do not think that that stacks up. Mr Finnie says that this is about who gives the public service. To an extent, this is about who gives the best service, the best value for money. Daniel Johnson goes on to suggest that if something is so important, it must be publicly owned. With respect, that is a facile argument, and it sacrifices the best delivery for dogma. I was very interested to hear him. My point was not that it is better. The point is whether it is right for a private organisation to make a profit at a delivery service such as this, which suggests that Mr Johnson would sacrifice delivery over principle and that he would put ideology over the actual delivery of the best service to the public. In summary, I will be voting against this, but I would be interested when Mr Finnie sums up to hear the cost of this proposal. Presumably, if we are looking to put it into the act, that cost will need to be a serious consideration. Where that money is coming from and also for his confirmation that he will support my amendment 76 that says that this must be appropriately resourced before it is passed. I have reservations about the amendment. I think that picking up the points that Daniel Johnson raised about the practicalities and, indeed, the principle. I hate what he is saying, but I can certainly point to examples of case work that has passed across my desk in the past 10 years, where the communications between entirely public service providers have fallen short of what they ought to be. The point that he makes about the importance of communication is absolutely right. I think that the assumption that somehow this is overly complicated and falls down where you introduce other players that are out with the public sector, whether that be in the private sector or indeed the third sector, as John Finnie referred to in his amendment, I do not think that it naturally follows. In relation to the principle, again, I hear what he is saying. I think that it is why the contracts in the procurement process have to be absolutely tightly defined, but I think that what we need to ensure is that the delivery against those is absolutely right, whether it is the public sector, whether it is the private sector or whether it is the third sector. It is the discussion that myself and John Finnie have had in perfectly the right spirit in relation to ferry contracts. I realise that those are of a different nature to the sorts of contracts that we are dealing with here, but nevertheless they still provide a lifeline to communities, rely on them and therefore the principle holds. Concentrating on what it is that is procured and making sure that that is of the highest quality is ultimately the primary concern. Therefore, with those comments, I can confirm that I will not be supporting Mr Finnie's amendment. Thank you. We are obviously still to hear from the cabinet secretary, but at this stage I am inclined reluctantly to vote against it. I said reluctantly because I agree with the principle of John Finnie, who is championing this issue throughout the evidence sessions and I agree with the principle of it, but I think that that is what it is. It is a principled amendment, and I am not actually sure that it would achieve the goal that it desires. I wonder whether it is best placed more in the policy context of the Government of the Day, because John Finnie is right to say that it is generally a principle of the S&P, but it is whether it is in more policy of the Government of the Day rather than in this bill. I am interested in what the cabinet secretary says about this point, which is reluctantly inclined to resist. I note the ideological argument that was put forward by several members, but for me the absolute crux of the provision and measure is that it would precrewd potentially the very best people, if that is private sector, as opposed to public sector, which it may wear very well be to effectively and efficiently monitor someone to ensure public safety. For that reason, I certainly could not support it, cabinet secretary. Thank you very much to John Finnie for bringing this amendment forward. I had a shiver up the spine when Liam McArthur and John Finnie started talking about ferries, and that debate remembered it only too well. I agree with Fulton's remarks about understanding the principle and having sympathy with the principle, but I will be urging members to resist amendment 90 for what I think are very good reasons, and I will try to articulate them as best I can. I thought that the point that Rona Mackay made was one that should not be dismissed, and I know that John Finnie was not dismissing it, but it is one that should be given a fair bit of weight that we are governed in this area by European procurement law. We do not know what is going to happen in the coming months and years ahead, but at the moment we are governed by European procurement law. We must treat economic operators equally and without discrimination. Any amendment may well be considered outside of competence if it is incompatible with any of the convention's rights or with EU law, and it could potentially be considered ultra-virus and open to challenge. Moreover, it has rightly been... Of course. Surely that only remains the case, providing it is subject to a tendering process at all? Why does the Scottish Government simply not give this duty to either Scottish Prison Service or Police Scotland and therefore not have it subject to a tendering process and therefore not subject to those European laws? That would be incredibly difficult to do. That is currently not the skill set of Scottish Prison Service. That is why we end up putting it out to a tendering process, I think, for a very good reason and for a very good purpose. I will come to this point in a second when it comes to other public agencies or third sector organisations. I am not convinced that it is also the best use of their time, for example, putting a tag on somebody's ankle and monitoring that. I think that there is a role there for potentially the private sector or a collaboration of third sector organisations, but I do not think that it is... Well, it is not within the skill set currently of SPS. If I make a little bit more progress, we will get on that point, of course. That is the continuing role for the Scottish Prison Service, because through care and after care, and the role that some of those officers play within the community is very positive. There is no threat of them being privatised, is there? No, we are not talking about privatisation of through care, but again what we are talking about in terms of electronic monitoring is very different to through care and through care support for a whole variety of reasons. Through care, for example, can be a part, an important element, to complement electronic monitoring, but I would not say that it is quite the same thing. As a couple of other members have already... In fact, John Finnie made mention of that himself, that there is nothing that currently precludes public or third sector providers bidding to provide the service. Indeed, the last time we tendered this contract, they did do so. The Scottish Government set the standard of service and assessed bidders on a number of criteria, including their organisational values, which allows us to ensure that in terms of how they operate any provider's organisational values are well aligned with what Scottish Government ministers want to see from the service in Scotland. Any provider that wins that contract, that is successful in that tender, under that contract from the Scottish Government, we set the technical standards and rules about how data is held and managed. That hopefully provides some reassurance and safeguards that exist around irrespective of provider. I also note that this element of the service that is provided by a private contractor or a public sector was not a substantive part of the stage 1 evidence. It is important that any actions that we take in this area are very much led by the evidence. It is important to separate out the actual service that is delivered from how it is sometimes reported, especially as a focus on reporting can often be on providers in England and Wales, where the service is vastly different. A recommendation to consider here was made by the electronic monitoring working group, whose work was the genesis for much of the bill. They suggested that there could be improved integration of electronic monitoring. The bill has taken steps to address the restricted movement requirements that are being added to community payback orders. The first disposal means that social work is much more closely involved in the conversation. I wanted to make that point about joint working. It is hugely important. If we restrict how we contract for a service in this way, not only do we risk not complying with our legal obligations, but I am not convinced that it would work or even allow for any joint working arrangements, and I am not aware of anywhere in the world where this service is delivered without some level of private sector provision. It is important to be clear. My understanding is that, in most countries, the devices are procured from the private sector, but they are administered by the public sector. We are quite alone or relatively unique in getting the private sector to both of those elements. Will the cabinet secretary acknowledge that point? I would look into the detail of that. Of course, I will reflect on what Daniel Johnson said, but he makes the point that there is some private sector involved. We cannot get away from that fact. It is a important point to make when John Finnie was almost verbatimally quoting SMP manifestos of past, that we have not built private prisons because, for us, there is a point of principle around that. However, we have to accept that, within the justice system, exactly as Daniel Johnson, who will be supporting John Finnie's motion, has said that there is some element of private sector involvement almost everywhere in the world. I have made this point already, but I will reiterate it. I am not of the view that it is the best use of, for example, a qualified social worker or through-care support worker's time in travelling out and putting a tag on someone's ankle. It is important that we bring together the respective strengths of public bodies and third sector organisers in supporting the service in Scotland. However, I am not convinced that that is best done by requiring that they take on the responsibility for a monitoring service. Yes, on the through-care and the after-care, which is why we work with those third sector operators, but on the monitoring service, I am just not convinced. On a more technical drafting point, the amendment prohibits the Scottish ministers for contracting with an individual who is not employed in the public sector, but it arguably does not prohibit ministers from contracting with a private sector corporate body and may therefore not achieve the result intended by Mr Finney. I suspect much more in hope than expectation, but I would hope that Mr Finney does not press amendments for the reasons that are provided, but if he does, I would ask the committee to reject the amendment. John Finney, to wind up, press or withdraw? I will be pressing, convener. I note that the cabinet secretary said that it was a point of principle about private prisons, and I am sure that he would accept that the party of government is not exclusive and allowed to have points of principle. One of the issues that is important here is the very point that my colleague Daniel Johnson made. That becomes an issue because it is put out to tender. Of course, the private sector has an involvement in almost everything, because police service does not make their own equipment. There is a role—it is called capitalism, and it is where we are, the reality, but what is unescapable is that, first and foremost, this is a competent amendment, and it would not be here, so I do not think that it is helpful to talk about challenges. Anything is open to challenge if it is. We have a situation where there is going to be increased information made available, and we can see that. People are concerned about the growth of information that is held, and they are particularly concerned that it is held by private bodies. I think that that is certainly a fact. Yes, indeed. I really appreciate John Finnie giving me a way to make an intervention. I wonder whether there is a specific Scottish example that John Finnie can give where private sector involvement has been the problem with this particular service. I would share your view that the prison service, private sector involvement, is unhelpful. To advise you, cabinet secretary, that you are behind the Tory UK Government on this, because only yesterday they took the contract away from Birmingham prison. We have never built a private prison as the Government, so I do not think that I would accept that situation. That was your point of principle, of course. It is a principle whether you see a role. The other thing is that, if we are going to accept that the position for any limited company, their statutory obligation is to maximise profit, so when Liam Kerr talks about where the money comes from, the money is there already. This is a service that is funded already, it is just about who delivers it. The question is amendment 90 be agreed to. Are we all agreed? No. We are not all agreed. Those in favour, please show. Those against, please show. Two in favour, seven against. The amendment is not agreed. The question is that section 10 be agreed to. Are we all agreed? We are all agreed. Call of amendments 38 to 45. All in the name of Daniel Johnson, all previously debated. Daniel Johnson to move. Amendments 38 to 45 on block. 38 to 45 moved on block. Thank you. Does any member object to a single question being put on amendments 38 to 45? No. The question is that amendments 38 to 45 are agreed. Are we all agreed? No. Those in favour, please show. Those against, seven in favour, two against. Amendments 38 to 45 are agreed. Amendment 46. The question is that section 11 be agreed to. Are we all agreed? Are all agreed. Good. Call of amendments 46 in the name of Daniel Johnson, all already debated. With amendment 2, Daniel Johnson to move or not move. The question is that amendment 46 be agreed to. Are we all agreed? We are not agreed. Those in favour, please show. Those against, please show. Seven in favour, two against. Amendment 46 is agreed. Call of amendments 91, in the name of the cabinet secretary, are already debated with amendment 84. Cabinet secretary, to move formally. Moved. The question is that amendment 91 be agreed to. Are we all agreed? Yes. We are all agreed. Call of amendments 47 to 51. All in the name of Daniel Johnson, all previously debated. Daniel Johnson to move amendments 47 to 51 on block. Moved on block. Does any member object to a single question being put to amendments 47 to 51? The question is that amendments 47 to 51 are agreed to. Are we all agreed? No. We are not agreed. Those in favour, please show. Those against, please show. Seven in favour, two against. Amendments 47 to 51 are agreed. At this point, I am going to suspend briefly for five minutes for a comfort break. Amendment 73, in the name of Liam Kerr, grouped with amendment 74 and 132. Liam Kerr to move amendment 73 and speak to all amendments in the group. The amendments that I move are, in my view, very simple and very clear. During the committee stage, and at stage 1, we were all concerned that, as the bill stands in its initial drafting, offenders can cut off their tag, they can tamper with their tag, and this may not be considered a criminal offence. Amendment 73 seeks to rectify this and make it an offence for an offender to cut off or tamper with their tag, regardless of the form of licence conditions or community order to which the electronic monitoring conditions are attached. My authority for bringing this forward comes in part from Scottish Women's Aids evidence to the committee at stage 1, that a criminal offence for these sorts of breaches is needed because they felt that they needed to be a credible deterrent. I also seek authority from Victim Support Scotland, Community Justice Scotland and Positive Prisons, who talked about a robust response to breaches of monitoring conditions. It is my view that my amendment 73 will ensure that. Amendment 74 simply moves from that to ensure that police have powers of arrest, where an offender has, for example, cut their tag off. Again, that was in response to evidence from the committee, from the police, that there are grey areas with regard to their powers to apprehend. My view is that this will put it in black and white on the face of the bill to give the police the powers that I think we all heard they needed, so I move both amendments in my name. Amendment 32 is in my name, so I will speak to it and other amendments in the group, starting with amendment 132. This covers the situation where there has been a breach of electronic monitoring orders. In its stage 1 report, the committee recommends that any breaches have to be swiftly investigated and when found to be substantive, for example, not due to a technical fault, are responded to quickly and effectively. In particular, the committee noted the powerful evidence here of the Scottish Women's Aid and others who expressed concerns on how breaches will be responded to in real time in cases involving domestic abuse or sexual offences. Given the nature of domestic abuse and sexual offences cases, it is likely that, if the offender has breached the electronic monitoring conditions and entered an exclusion zone, there is a very real danger of something adverse happening very quickly. Amendment 132 therefore seeks to ensure that when there is a suspected breach of or of a disposal of conditions that relevant bodies are contacted by the police specifically cited, then, let me say that again, it is ensured that when there is a suspected breach of conditions that relevant bodies are contacted, Police Scotland are specifically cited, but the scope is there for Scottish ministers to expand that to any other relevant body that they think pertinent. The amendment is drafted in this way, as I have been advised by the bill's team that I am unable to focus on domestic abuse and sexual offences cases specifically in the legislation. As a consequence, I recognise that the scope of this amendment, if applied to all notification situations, is likely to provide too wide to effectively cover any breach. It is therefore at this stage a probing amendment to clarify and allow the cabinet secretary to set out how the Government envisages that these substantive breaches, not technical breaches relating to domestic abuse and sexual offences cases, can be responded to in real time, where someone for example does enter an exclusion zone and how we can assure in these circumstances—because it is quite different in nature, I think, from many other offences—that victims are protected from the potential gravity of these breaches. I move amendment 132 in my name. Do any other members want to speak? I would just like to speak briefly in support of both of those amendments, albeit acknowledging that the convener is saying that the amendment in her name is a probing amendment. In part, Liam Kerr put it very well that there needs to be a robust and swift response when people breach. I think that the way that I perceive this is as follows. People released on-tag are there as a substitute to a prison term. They are out in society on an electronic tag. That is the correct approach, but when they breach those conditions—in particular, such as substantial breaches, they are cutting off a tag—it has to be viewed as seriously as someone breaching the conditions of prison. A cutting off a tag needs to be regarded with the same level of seriousness as someone going over a prison wall, because that is in effect the comparable situation. I have had conversations about the need to have a reasonable element to parts of this. In particular, I have concerns about all breaches of all conditions, in particular, as the convener highlighted, about technical conditions such as someone arriving 10 minutes late at home breaching their curfewd, because the bus was late or there were other. That needs to be taken into careful consideration, but I think that Liam Kerr is right to frame the amendment in such stark terms. I think that I will listen to what is said about those technical elements. In terms of the information sharing in amendment 1-1, I think that this is an amendment that is well stated and very much in line with some of my other amendments around information sharing. While the convener may not wish to press it at this time, I would be interested in exploring those issues further. I think that all three of those amendments are interesting and I address what I thought was one of the most interesting bits of information that we got in the course of our inquiry, and that was the input from Pete White from Positive Prison and Positive Futures, which has been touched on. He did say that the counterbalance to what might be seen as more liberal criminal justice regime is that there must be a robust response. I look forward to hearing what the cabinet secretary has to say in this. I am always a wee bit wary that there will be occasions where discretion is appropriate in the circumstances that we are outlining. Of course, it is important that the person who is making those decisions feels empowered to do that, and that is always sometimes a challenge. I agree with John Finnie's comments in terms of some of the evidence that we heard through stage 1. That was one of the more substantial issues that went into the report, and Liam Kerr is certainly right to bring it forward. My worry would be that my initial reading of this and maybe Liam Kerr can address this concern and sum it up, but my initial reading of this is at this stage that the main driver behind amendments 73 and 74 are of a punitive nature rather than trying to address the concerns that were raised about the cutting off of the electronic tag. I am not inclined to support it on that basis just now, but I think that he was right to bring it along. It might be something more for stage 3. I appreciate amendment 132, which is essentially probing. There is perhaps a bit of work to be done to finalise the wording around that, but it illustrates the benefit of bringing forward those amendments at stage 2, so that can be done ahead of stage 3. Perhaps with 73 and 74, there may be further revision that is necessary, but I would very much echo John Finnie's points about how what we want to see is a more liberal and progressive regime, but there have to be robust safeguards in there if it is to carry the confidence of the wider public. I will listen with interest to what the cabinet secretary has to say. I suspect that there probably will be changes still required to those amendments, but I think that it serves a useful purpose in putting down a mark at stage 2. I forgot to just say my support for this very robust approach, which I think is needed if a tag is cut off or tampered with. I look forward to hearing what the cabinet secretary has to say. I thank both you and Liam Kerr for bringing forward those amendments to recognising yours as a probing amendment, but I will do my best to address some of the concerns that you rightly highlight. Also, from Liam Kerr, I thought that he articulated the intention behind his amendments, particularly those well-founded fears that we have heard from survivors of domestic abuse from victims of a variety of offenses, but recognising that, convener, as you have done, particularly with domestic abuse, and has rightly been in the spotlight this week, the unique nature of that particular offence. Let me try to do my best to address as many of those concerns. I am conscious of the very good intentions behind those amendments. We will not be able to support them because of the concerns that we have in relation to unintended consequences, if nothing else in us speaks to them. Second, it may also be the case that, at the time of lodging of some of those amendments, members would not have had sight of the Government's own amendments, which creates the new offence of remaining unlawfully at large and, indeed, a wider amendment around home detention curfew. You might want to consider those amendments in that context. Amendment 73, as has been mentioned, would make it an offence to contravene the electronic monitoring requirements set out in section 12.2 and 12.3 of the bill, being the duty to be instruction of how to use and to wear the tag, and the duty to refrain from tampering with or damaging or destroying the tag. However, that offence would apply to all forms of electronic monitoring, whether imposed by a court alongside a community sentence or, indeed, imposed by the Scottish ministers on early release from prison. The amendment does not provide for any form of defence for an individual who contravenes the electronic monitoring requirement. An individual who has a reasonable excuse for cutting off a tag would still be committing an offence. As a point that has been raised by a number of members, Daniel Johnson is asking about what would happen if the bus turned up 10 minutes late. The amendment is drafted and does not provide for any form of reasonable excuse for cutting off a tag. What does the cabinet secretary see as a reasonable excuse for cutting off or tampering with a tag? I will come to that in a second, but that might be, for example, a medical reason why somebody had to cut off a tag. Let's say, for example, they injured their leg, it was bleeding, the wound was exactly where the tag was. If medical treatment had to take place and they had to cut off the tag, we would agree that that would be a reasonable excuse, but that is not permitted. Now, I accept that that is an exceptional case that might happen, but the law must be able to allow for those flexibilities and those reasonable excuses. I think that this is an important detail, but would he acknowledge that there is an argument to be made that someone deliberately removes a tag with the intent of evading the conditions of that HCE, that that should be an explicit offence? Would he consider examining a form of words to make that a specific offence going forward, albeit with the conditions that, where someone may have a reasonable belief that they will come to harm because of their tag, that that may be an excuse? If you will give me time to progress my argument slightly—I was just touching upon the reasonable excuse point, but if you would allow me to develop my argument slightly, I am not convinced that just that element should be an offence and I will come to why, because I think that there are issues around creating hierarchies, I think that there are unintended consequences and I think that the approach that we are taking as a Government around a law fit at large is the best approach to try to allay some of those fears that exist. Another issue with the way the amendment is drafted is that proposed offence would only be triable in somebody's proceedings with a maximum sentence of 12 months imprisonment or a fine at level 5 on the standard scale, or indeed both. With the forthcoming raising of the presumption against short sentences to 12 months, do we presumption therefore against imprisonment for this new offence if, of course, the presumption passes? The individual may therefore be likely to receive a fine. The new offence does not clarify what should happen if an individual cuts off their tag and receives a fine for breaching the underlying community sentence. An individual who cuts off their tag and therefore breaches the community sentence could, in the case of an RLO or a CPO, be fined by the court and the underlying order can continue in force. A further fine could then be imposed for the new offence created in amendment 73, therefore enabling two separate financial punishments to be imposed on the individual for the same course of conduct. Part of the rationale also for not making cutting off a tag or a general breach of license condition a further offence is that there are already sanctions for those who cut off an electronic tag or otherwise breach the conditions of a license or community sentence. An individual who breaches a license condition can be recalled to prison to serve the requisite part of their sentence. A short-term prisoner on HDC would require to return to prison until their automatic release or indeed at the halfway stage. A long-term prisoner on HDC or parole would likely see their parole withdrawn and would only be re-released once the parole board considers it appropriate. If an individual serving a community sentence cuts off an electronic tag or otherwise breaches the conditions of a license, they can currently be returned to court, fined and the terms of the underlying community sentence can also be varied in response. Alternatively, the court could revoke the community sentence and sentence the individual afresh, which can involve imposing a sentence of imprisonment. The bill provides an electronic monitoring requirement, which can be imposed in community sentences and license conditions. The electronic monitoring requirement is that the individual must wear an electronic tag and refrain from damaging or tampering the tag. The bill currently provides that a breach of the electronic monitoring requirement constitutes a breach of the underlying court order or the underlying license conditions. That enables the breach provisions to be discussed above for early release in community sentences to be triggered when an individual cuts off an electronic tag. The bill expressly provides that if a breach of an underlying community sentence constitutes an offence, that offence will not be committed by breaching the EM requirement. In addition, we have brought forward a stage 2 amendment to make it an offence to remain unlawfully at large. In that respect, we agree with Liam Kerr that an additional punishment is required beyond the return of the individual to prison and the impact on their future release. The new unlawfully at large offence provides that additional punishment. The unlawfully at large offence also fulfills the October 2018 HMICS recommendation without further offences being required. An individual on licence who cuts off their tag will be recalled to prison, and if they fail to return timuously, they will be committing an unlawfully at large offence. An individual serving a community sentence who cuts off their tag can be fined or imprisoned under existing legislation. We propose to resist that amendment for those following reasons. The existing breach procedures for parole, HTC, temporary lease already enable the immediate recall of the individual to prison. The existing breach procedures applicable to community sentences already enable a court to punish an individual who cuts off their tag. The new offence of cutting off a tag will sit alongside existing punitive measures available to the court in relation to community sentences, which could result in the individual being fined twice over. The creation of an unlawfully at large offence reduces the need for the offence of cutting off a tag in the context of those release from prison on licence. The unlawfully at large, and that is a really important point, would apply to all breaches of licence conditions, including cutting off a tag where the individual is recalled and does not comply timuously. The unlawfully at large offence would, by definition, exclude community sentences and thereby side-set the need for a similar measure in relation to those orders. If the offence was to be restricted to just cutting off or damaging the tag, we could be elevating that electronic monitoring licence condition above all other conditions, even if those other conditions were potentially more important to protecting the public. For example, if an individual staying in their house and cutting off the tag, they would be committing an offence, but if an individual breaches a condition not to go near a school and breaches that condition, they might not be committing an offence. To some degree, we are dealing with electronic monitoring, and it is the tag that makes those conditions possible. If you cut off the tag, you are cutting off the very thing that makes those conditions, albeit the point, but you are making the means of those conditions and monitoring those conditions impossible in the moment that you cut it off. Therefore, it is of a more fundamental order for that precise reason. I would take some exception to that example that I gave. Somebody could keep the tag on and be told that the licence condition was not to go near a school for very good reasons, and that might not be an offence, whereas cutting off the tag and sitting in their home would not be. We can argue about whether that is more or worse of an offence or not, or a breach of the condition or not. My point is that I do not disagree with the general intent behind what Liam Kerr is trying to do. What I would suggest is that, making him lawfully at large, we would cover all those potential breaches, including cutting off a tag at an offence. That is why it is a better approach, rather than elevating one particular breach of a licence, albeit a very important one and a very serious one in relation to others. I am going to move on to amendment 74. It provides power of arrest where a constable suspects an individual's committed defence created in amendment 73. Amendment 74 does not specify whether this arrest can be affected with or without a warrant. The amendment is unnecessary, regardless of whether or not the amendment 73 offence remains in the bill. Section 1 of the Criminal Justice Scotland Act 2016 empowers a constable to arrest an individual without warrant where the constable has reasonable grounds for suspecting that the individual has committed or is committing an offence. We would therefore propose to resist amendment 74 on the grounds that is duplicating existing legislation, thereby creating confusion as to which provision applies in any given case. We recognise that that is not what we heard from Police Scotland. They said that they did not have a power of arrest. We will try to give clarification to that with the amendment that we will bring forward in relation to lawfully at large. However, I am very clear with the powers that currently exist and we have checked and double checked this in relation to section 1 of the Criminal Justice Scotland Act 2016. However, that is not to take away from the recommendations that are made by HMICS in the report. Therefore, our amendment will bring forward in lawfully at large and further amendments will give clarity to the powers of arrest that are available or not. If I might pick up on that point, because I share John Finnie's concern, we heard very clearly in committee from officers that if they were to find somebody of an evening who they clearly felt was unlawfully at large, they did not have the power to arrest them. I am paraphrasing very much, I appreciate that, but that was certainly the evidence that I heard and I believe the committee heard that they did not have that power. The cabinet secretary seems to be suggesting that that is a misunderstanding on the part of the police. Is that correct? No, I am not suggesting that in the slightest. There is a difference between the powers of arrest when there is a suspected breach, when there is a breach that is being confirmed. I think that that is a really important point to make. I suppose that the second point that I would like to make is that the police need that clarification. We are happy to provide that clarification in relation to amendments that we will bring forward. I am not convinced that your amendment tied to amendment 73 is the right way to do that, but I am happy to give those reassurances where we can with any amendments that we bring forward. If an individual breaches a community sentence, the court has a power to issue a warrant for their arrest. If an individual breaches a licence condition, they can be recalled to prison and a pawn recall their deemed to be unlawful at large. An individual who is unlawful at large can be arrested without a warrant and a constable can obtain a warrant to enter and search premises to arrest an individual who is unlawful at large. That latter power is being clarified in the bill. There are existing powers for a constable to arrest an individual who cuts off their electronic tag, which makes amendment 74 unnecessary. Amendment 74 does not refer to the events that are created in amendment 73. According to those amendments, they are not co-dependence with the rejecting of one and I suppose does not necessitate the rejection of the other. That being said, we would recommend the rejection of both for the reasons that I have outlined. On amendment 132, I appreciate him probing, but I think that it is important, nonetheless, that the points that are made by the convener place an obligation on the designated person to report every suspected breach on the community sentence or licence condition to the police whether or not the designated person considers that breach should be addressed by the police or not. So, an individual who is five minutes late for the HDC curfew would require to be reported to the police even though the police would not act on that information unless an individual has been recalled. Similarly, an individual who is five minutes late for a obstruction of liberty order curfew would require to be reported to the police even though they would have no interest in that case unless the court issues a warrant for the arrest for the individual. All of that being said, the points that the convener raises around the importance of this issue in relation to the particular offence of domestic abuse is an important one. Issues of support and compliance with the electronic monitoring were developed with partners as part of the EM users' requirement working group to give the convener summary assurances on that victim support. Scotland a part of that group, Scottish Women's Aid a part of that group, turning point, positive prisons, positive futures, are also members of that group as well. I should say that the drafting of the amendment also means that the section applies where the individual is suspected of having breached a section 3 disposal or section 7 licence conditions. There is no reference to an electronic monitoring requirement here, so the section arguably could capture any breach of a disposal or licence list in section 3. I understand that this is a flawed amendment. That is why it is a probing amendment. The substantial reason for raising it is to address domestic abuse and sexual offences, whereby the nature of it, if a tag is tampered with, if they enter an exclusion zone, the likelihood is more than I think with any other offence that there is one purpose in mind, the victim in mind, and for an adverse consequence to occur. My question to you is how do we address that in this legislation? I suspect that some of this will come down to the guidance that we end up producing for electronic monitoring, but it goes back to that EM users' requirement working group that we have. The reason why we have Scottish Women's Aid in particular on that group is to try to see how we can address some of those concerns. I think that the unlawfully large offence that I bring forward will help to give some element of comfort in that, but, certainly, upon drafting updated guidance, it will be submitted to Social Work Scotland's Justice Standing Committee when the review is complete and shared with local authorities thereafter. However, that working group that I have spoken about will help us to make sure that we give assurances. There is a very real, if I understand the direction that you are going in, that we pass it and then we will look at the guidance later and hope and just hope that we get it right. I do not think that that is good enough for victims of domestic abuse. I do not think that it is good enough for the victims of sexual offence when we know that in real time this legislation could be putting them in danger. I ask you how can we address this in this bill and is this something that we can look at at stage 3 on the face of the bill? It may be that, perhaps, those are offences that are not appropriate for this legislation. I always work with members in advance of various stages to try to give as much reassurance as I possibly can. I am not convinced that having assurances on the face of the bill is the appropriate place for it. I may be proven wrong in that, and I am open to persuasion in that in advance of stage 3. We will have a conversation with the likes of Scottish Women's Aid and others to try to determine if they have— I will ask you to come back in. What I would suggest is that we have given reassurances in relation to the unlawfully large offence. We have the EM users' requirement working group, so when we choose to adopt new technologies via GPS or others in relation to electronic monitoring, then that group will be one that will be consulted and that we will consult with. Of course, I am open to working in advance of stage 3 to see if we can give some further reassurances to you or to any other members. I suppose that the proposal was that domestic abuse and sexual offences were looked at at a category where there would automatically be a swift response by the nature of the offence, by the police to investigate, to attend and to establish if there was a potential danger. I am happy to look at that and have that conversation. In some cases, breaches will be a matter for the courts and not a matter for the police. That is the nature of the law, depending on the type of licence that you are on. However, if you make a point in particular offences, I will be open-mind to looking at that. If we did not pass the legislation, those people would be behind bars and there would be at that stage no threat to the people that I am talking about. It is the fact that we are passing the legislation now that has potentially put them in danger. That is what I am asking you to look at. I will happily look at that with you and the State of the Union, in advance of the State of the Union. Llym Cair to wind up and press a withdrawal. Thank you, convener, and thank you to all the members and cabinet secretary for the very interesting contributions and debate. Just to address some of the points, Fulton MacGregor was concerned that the main driver behind 73 and 74 was about punitive amendments, rather than to address concerns. I would say, just to reassure you that, that is not correct. Those are directly to address the evidence from the committee, the certain tragic events that have happened and, certainly in this regard, I associate myself very much with some of the comments of Daniel Johnson, who talked about how seriously we view, or should view, the cutting off, the tampering of a tag, and particularly in his comments of, that this is as serious as going over the prison wall, of course. I appreciate the intervention and I appreciate that it might be an oversight. I do not think that anybody is disputing that the cutting off of the tag is a very serious action. I think that we all generally agreed the principle of your amendment, but if the main driver was not a punitive one, rather than to address a concern, why is there nothing in the amendment about individual circumstances, like the cabinet secretary pointed out, around health concerns? Well, it is a very serious action and that is precisely why I address, brought up Scottish Women's Aid, talking about the needs to be a credible deterrent and positive prisons, as we mentioned several times quite rightly, talking about how we need a robust response. But again, to answer your question directly, I thought that John Finnie and Liam McArthur made some important points in that regard. There will be occasions where we need discretion, but what we need, above all, is a safe regime. I do understand the ethos behind what this bill is about, but we do need that counterbalance, we do need that robustness. In which regard, I turn to the cabinet secretary's comments. I do not accept that this is too punitive, but I think that we had a very interesting discussion about the Government's amendment and perhaps we will look in more detail at that later. That is something that I think I can support in the alternative, but I do not want to because I want this to go through. The reason being, cabinet secretary, that the unlawfully at large amendment will only apply to home detention curfew. That is one of 10 disposal types listed in this bill. My concern on that is that we may be seen to not have learned the lessons of the Craig McClelland murder that Daniel Johnson brought up earlier. We have to learn the lessons from that case to ensure that there is zero tolerance across the board. In terms of the unlawfully at large, my concern is that the principle—I see what the cabinet secretary is trying to do, but I think that the amendment proposed and we will no doubt debate that later, but I think that it is insufficiently powerful. My understanding of the cabinet secretary's offence is that it will be committed when the offender does not immediately return to custody once the licence is revoked. My view is that that is just not powerful enough, cabinet secretary. I thank Liam Kerr for giving me just a point of clarification. Unlawfully at large does not apply just to HCC, applies to parole and also temporary release as well, but it is just not the point that I made about unlawfully at large when we look at any breach of a licence condition and, therefore, somebody potentially being recalled, why does he think that it is a lesser offence for an individual to breach a condition of going near a primary school vis-a-vis when there shouldn't be vis-a-vis cutting off a tag, sending it home? Why is he creating that hierarchy when our unlawfully at large offence does not create that hierarchy and punishes rightly anybody who goes unlawfully at large? I am grateful to the cabinet secretary. I do not accept that it is creating a hierarchy. I think that Daniel Johnson, in his intervention, dealt with that point pretty well. I will refer back to that. I will come back to that point in two seconds, if I may. Just on the amendment 74, so this is the point about the officer, the constable, being able to arrest the offender, my view is that that power is needed. I think that the unlawfully at large offence risks putting delay into the system. It risks going back and forth before the offender is brought back. As we saw in the Craig McClellan case, I think that any delay, any inability to bring people straight back can lead to tragic irreversible consequences. I do not think that we should risk that. I think that we need a robust power that 73 and 74 give. Without those amendments, I cannot see that there is any guarantee that an offence is committed for cutting off a tag. That is the power that this amendment will give. In summary, my view would be that I would encourage members to vote for my amendments today, 73 and 74, accepting what the cabinet secretary has said. I hear the concerns, but what I would encourage committee members to do is to vote for those amendments and allow the cabinet secretary to bring forward subsequent amendments in terms of defences at stage 3 once we have the power in place. I take it that you are pressing. The question is that amendment 73 be agreed to. Are we all agreed? We are not all agreed. Those in favour, please show. Those against, please show. Three in favour, six against. Amendment 73 is not agreed. Call amendment 74 in the name of Liam Kerr, already debated with amendment 73. Liam Kerr to move or not move? The question is amendment 74 be agreed to. Are we all agreed? Yes. We are not all agreed. Those in favour, please show. Those against. Are there any abstentions? I use my casting vote to 44 and I use my casting vote over in favour of amendment 74. Call amendment 92 in the name of the cabinet secretary, already debated with amendment 84 to move formally. The question is that amendment 92 be agreed to. Are we all agreed? Yes. We are all agreed. The question is that section 12 be agreed to. Are we all agreed? Yes. We are all agreed. Call amendment 52 in the name of Daniel Johnson, already debated with amendment 52. Are we all agreed? The question is that section 52 be agreed to. Are we all agreed? Yes. We are not all agreed. Those in favour, please show. Those against. Seven in favour, two against. Amendment 52 is agreed. Call. Yes. On a point of order or some such. I am going to oppose every single time that Daniel Johnson brings this amendment forward and there are significant numbers. I wonder if there is some process by which... If it helps on this particular occasion, we are only going to go to amendment 53 and, given the time restraints and the fact that we have other items in the agenda and to assure that each of these amendments have the fullest debating time and consideration, then I will be stopping after 53 so perhaps that solves your dilemma. Thank you. Call amendment 53 in the name of Daniel Johnson, already debated with amendment 2. Daniel Johnson, to move or not move. The question is that amendment 53 be agreed to. Are we all agreed? Yes. We are not agreed. Those in favour, please show. Those against, please show. Seven in favour, two against. Amendment 53 is agreed and we will stop consideration of amendments at stage 2 at this point and it only remains for me to thank the cabinet secretary for attending. I will spend for a minute to allow the cabinet secretary and his officials to leave. Agenda item 2 is consideration of a negative instrument, an act of deterrent, rules of the court of session, sheriff appeal court rules and ordinary cause rules amendment taxation of judicial expenses 2019 SSI 2019 oblique 74. The Delegated Powers and Law Reform Committee has considered and reported on this instrument and had no comments on it. I refer members to paper 1, which is note by the clerk. Do members have any comments on the instrument? If there is no comment, therefore, is the committee agreed that it does not wish to make any recommendations in relation to this instrument? Before we move into private session, could I have agreement to take item 4 in private? That being the case, that concludes the public part of today's meeting. Our next meeting will be Tuesday 23 April, where we will continue our consideration of the management of the Vendor Scotland Bill at stage 2 and it only remains for me to wish everyone a very happy Easter. We now move into private session.