 I welcome to the 19th meeting of the criminal justice committee. There are no apologies this morning. Agenda item 1 today is consideration of the coronavirus recovery and reform 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 Keith Brown, cabinet secretary for justice and veterans and his officials to the meeting. I remind the officials that they are there to assist the cabinet secretary during the stage 2 debate. They are not permitted to participate in the debate and for this reason members should not direct any questions to them. We are also joined by two non-committee members who have also lodged amendments to the bill, Graham Simpson MSP and shortly to arrive Brian Whittle MSP. As a reminder, the criminal justice committee will be considering amendments to the justice provisions in the bill, specifically sections 26, 30, 31, 32 and part 3. Part 5, including the schedule being considered immediately after the section that introduces it, any other amendments specifically on matters relating to justice, including civil and criminal justice. All other amendments will be considered by the Covid-19 recovery committee. Separate daily lists and marshaled lists have been produced for each committee. Before we begin our consideration of amendments, I would politely ask members to make their points succinct and clear when they are speaking to their amendments. The question is that section 26 be agreed to. Are we all agreed? The question is that sections 30 and 31 be agreed to. Are we all agreed? I call amendment 1009, in the name of Jenny Greene, in a group on its own. Jamie Greene, to move and speak to amendment 1009. This amendment 1009 is in relation to the functions of parole boards. Section 32 of the bill specifically includes a clause that allows certain functions of the parole board to be conferred upon another individual that has been the case throughout Covid. That is particularly important in the absence of the chairperson. The chairperson in pro hearings plays an important and vital role in those proceedings. No one certainly has any problem with that in principle. This amendment seeks to do something else and that is to ensure that should the chairperson be absent from her hearing, the scheme that is set out regarding who takes over their functions and what functions they take over. Despite that change, to ensure that victims can still attend parole hearings, the amendment itself specifically asks which those who are authorized to carry out functions conferred in the chairperson ensure that registered victims are able to attend parole hearings in the absence of the chairperson. It then defines what a registered victim is using existing legislation. It is quite a short amendment but an important one because we would all agree that the coronavirus pandemic has made it more difficult for victims to have a voice in the justice system and be that through processes that have moved online, hearings that have been delayed and postponed often repeatedly or indeed because victims themselves have contracted Covid and were unable to participate fully in proceedings. Those who I have spoken to have been concerned that changes to the parole board and its operations during the pandemic have given them no say in proceedings and no voice through the process. That is backed up by statistics. Between March 21 and October 2021, during the pandemic, a freedom of information request discovered that 26 victims had applied to attend parole hearings during that period of which none had been granted. I do not have wider statistics but I am sure that they are equally as poor. It is unclear what the reason for that denial was, in fact, to many of the victims themselves, some of which I spoke to personally and said that they had been given no reason. I think that pandemic or no pandemic, chairperson or no chairperson, it will not be a surprise to members to hear that I believe that victims deserve the opportunity to attend hearings in whichever manner and shape, form they take. In fact, one that I spoke to just two weeks ago is still facing repeated challenges in attending parole hearings, which are only just now moving from teleconference to video hearings of which none of which are face-to-face and have been endlessly and repeatedly cancelled, delayed with no justification. Thank you for taking the intervention. You have answered a question that was occurring to me when you were speaking, Mr Greene. I was wondering whether parole hearings were being held virtually and clearly they have been. In that case, it seems to me that, if they have been held virtually, there is no reason whatsoever why victims, for reasons of public safety, should not be able to attend. With that in mind, I can think of no reason at all why members would not support your amendment. That is why only one amendment seems eminently sensible. I appreciate your support. I think that there is a very genuine point to be made there, and people have asked that very question. In an environment where there is no physical meeting, why and if people are being denied the ability to attend hearings, we do understand that many processes have moved online for good reason. We understand that this bill seeks to extend some of those measures in the eventuality that they are so needed. My own view is that there is no excuse for only doing things virtually these days when, as we can see, the world has indeed opened up. Again, there is a process—I am sure that the cabinet secretary will clarify this—of how victims can participate in hearings. That process already exists, but it is clearly not working. In my amendment, it is equally saying that not all victims must attend every pro-hearing. It is not going that far, either, but what I am asking is that in the eventuality that the chairperson who often makes that decision is who can and can attend, that when that person is incapacitated in any way or those functions have been conferred on another, that they must lay out the process by which registered victims are able to attend hearings, which they clearly are not at the moment. I hope that other members and the cabinet secretary will be sympathetic to the rationale behind my amendment. Thank you, convener. I am sympathetic to the rationale that Jamie Greene has laid out, but I do not support and the Government does not support his amendment for the reasons of just enumerate. First of all, I will restrict my comments to the actual amendment, rather than the wider issues that have been raised. Victim attendance at pro-hearing is obviously a key issue, and it is one, as I say, a fully support. However, the scheme of delegation for the chairperson's functions is not the appropriate or even logical mechanism by which to address it, as they are entirely separate matters. Ensuring that victims are able to attend pro-tribunal hearings is not a statutory function of the chairperson. Instead, provision for victims to attend hearings is made in the parole board rules. They were amended last year to explicitly provide for attendance by victims. The scheme of delegation that section 32 of the bill provides for is about delegating functions conferred on the chairperson of the parole board. Most obviously that means functions associated with heading the organisation, but the chairperson also has particular statutory functions, for example in relation to the reappointment of other members of the board. It is for the chair of each parole tribunal, rather than the parole board, to exercise the function of granting or refusing an application by a registered victim to observe a hearing. The absence or unavailability of the chairperson of the parole board as a whole does not impact this established process, nor does it affect the entitlement of a registered victim, if permitted, to attend. It is therefore not clear what the amendment would seek to achieve. At an earlier stage in the pandemic, it is true to say that victims were not able to attend hearings as chairs prioritise the safety of victims and staff. Just to reiterate the point, those are decisions taken by the independent parole board, not by the Scottish Government. However, the board has since successfully held tribunals with victims in attendance, and for the Government's part, we will continue to monitor support and encourage this important function, as carried out by the parole board for Scotland and just as partners. I would therefore invite Jimmy Pee not to press this amendment. I thank the cabinet secretary for the technical explanation of why the amendment does not fit here. It is interesting, though, that what that seems to imply is that the cabinet secretary is sympathetic to the rationale behind what I am trying to achieve, but for technical reasons I believe that this is not the right place to put it. I would question where else in the bill this could go, because this is a bill that seeks to extend temporary measures in the judiciary that took place during Covid. There clearly are and is a deficiency of process that needs to be addressed somewhere in the bill, possibly at stage 3. I appreciate through the assistance of the legislation team that tried to include it in this section in relation to the functions of the chairperson. If that is not an accurate and technically competent place to put it, then there may be another place that we could put it, and perhaps that is something that I may do at stage 3. The cabinet secretary and his answer did not address the issue itself, but I have only disputed it on a technical reason, which leads me to believe that there still is an issue to be fixed here. With that in mind, I may work with the legislation team or, indeed, the cabinet secretary is willing to look at how we can ensure that victims are front and centre of the legislation as we move forward, especially when it comes back to stage 3. The question is that section 32 will be agreed to. I move on to the next grouping. I call amendment 1003, in the name of the cabinet secretary, in a group on its own. The children's hearing system delivers legally binding decisions for the children and young people in Scotland who are most at need. It relies on highly trained and dedicated volunteer panel members to deal with 30,000 hearings each year. Legally, each three-person panel has to include a mixture of male and female members. Hearings can be arranged anywhere in the country and sometimes add extremely short notice. In short, it is a logistical challenge that has been met head on by the volunteer community, but the pandemic has impacted on the availability of these volunteers and there have been long-standing issues with the recruitment in particular of male panel members, but those issues have been exacerbated over the past two years. The Coronavirus Scotland Act 2020 relaxed the requirement for having male and female panel members for every hearing. That relaxation was allowed to expire on 30 September last year, but the situation has changed since the beginning of this year. The number of panel members leaving their volunteer roles coupled with lower than required numbers of males being recruited this year has led us to a point where the challenge of managing the statutory requirement to have male and female members on every panel is now acute. Continued adherence to the requirement in these circumstances risks, delays and decision making to the detriment to some of the most vulnerable children and young people in Scotland. Members will be aware that children's hearings Scotland has written to the committee and to the Government asking for legislative action. Amendment 1003 retains a principle that children's hearings panels should have male and female members, but would allow a hearing to go ahead where achieving that is simply not practicable. It thereby ensures that children's hearings can continue to make decisions timidly and it reduces the over dependence on a small number of volunteers, which, if it were to go on, might result in their deciding to leave the service altogether. The amendment has a broad level of support from stakeholders who work across the hearing system and through the work of the children's hearings Scotland, we know that children and young people would value the flexibility that that change would introduce. As committee members will be aware, work is under way to consider the future of the children's hearings system. I believe that that change is needed now, while the hearings systems working group develops their recommendations for the future and therefore move amendment 1003. Thank you, cabinet secretary, for outlining the rationale behind the amendments. Initially, when you read them, you thought that you would not want to depart from what would be a general need to get a balanced panel. I am reasonably familiar with the difficulties getting men to sign up. I wonder if you could say more about what the Government is going to do about trying to correct that in the future, if I can get to ensure that we can have mixed panels in the future. Can you clarify for the record how long would that be in place before you would have to review it again? First of all, I think that the work that we have done through the hearing systems working groups that they are considering is currently, and I think that I have laid out the fact that, just as Pauline McNeill says that our desire is that we return to a situation where we have that balance. It has also been true, as Pauline McNeill says, that for a number of years we have had difficulty getting male members to go across. I know that in my local area the marriage is successful. I encourage one or two males to join, but in my area of club marriage, there is a very small pool of people from whom they can draw. I think that the national convener of the children's hearing system does remain committed to diversity in the recruitment of panel members, as does the Government, and in relation to the composition of individual hearings. We think that it is optimal to have that balance for very obvious reasons. Sheriff Mackay, who some members will be aware of, is leading a review, who happens to come from my local area, just by sheer coincidence. He is leading the review to consider the future, and it may be that this issue is considered further against a backdrop of change in the system more generally, but that is a matter for the independent hearings group. We have asked him to continue to collect data on the gender composition of children's hearings, and we will continue to monitor how and when the measure is used. As has been mentioned in the bill itself, it is a temporary measure. Thank you very much. Do you wish to make any further comments just by way of winding up? Just one thing to say that, although the bill itself has a number of temporary changes, this one is a permanent change, although, as I have been trying to explain, the whole situation is under review through the hearings group that I mentioned. The question is that amendment 1003 be agreed to. Are we all agreed? The question is that section 38 be agreed to. Are we all agreed? Thank you. We will now move on to the next grouping. I call amendment 1035, in the name of Pauline McNeill, grouped with amendments as shown in the groupings. I remind members that, if amendment 1035 is agreed to, I cannot call amendments 1005, 1006, 10036, 1007 and 10010 due to a preemption. Pauline McNeill will move amendment 1035 and speak to all amendments in the group. Thank you very much, convener. There has been a lot of discussion in the committee about the use of electronic conducting courts, and by necessity it allowed us to conduct court proceedings during the pandemic. I acknowledge that the Government has said that we want to monitor the effectiveness of that. We have heard quite a bit of evidence from some lawyers' groups expressing concern about the balance of that, and whether or not in some proceedings that virtual appearances we all considered are fair and balanced. I appreciate that there is a lot further to go in terms of the discussion on that. Amendment 135, in my name, removes the suspension requirement to physically attend. Any requirement has expressed that a person physically attends a court or tribunal does not imply unless the court or tribunal directs a person to attend physically. Subparagraph does not apply in relation to a hearing in which a person is to give evidence that has the effect of taking out all default to virtual appearances for all court proceedings. I am probing that, because we need to have on-going discussions about that. Amendment 1036 is probably an amendment that I am going to push, and I will say why. The amendment to stop appearances in custody courts from being virtual by default is mainly based on my own experiences of going to the Glasgow custody court. I appreciate that it is one day. However, what I saw on that day, I am assured, is quite a regular occurrence. It gives me cause for concern that we would continue to have virtual appearances in custody courts. What I witnessed was that we were in Glasgow on a Monday, where we were doing four cases, five cases and another. After five cases, the quality of the vision and audio was so pure. The court had to be adjourned. I was informed at the previous Monday that the custody court ran to 9.9.30, and that is not unusual. It is because of the quality of the electronic audio and electronic visual. I also witnessed, by permission, a petition case in which the wrong accused was brought to London police station. We had to start all over again. I could not see the accused. Everything about it seemed to me to be undermining the whole process. I would take an intervention, yes. Can I just confirm that, when this relates to an appearance from custody, the member's intention about this is that those who have been arrested are held in a police station, not those who are in custody in a custodial sentence environment, just to clarify that. If it is the former, not the latter, haven't we heard also from the police that such physical appearances actually take their whole day out and cause quite a bit of concern for police officers or remand officers? Isn't there such a much more efficient way of dealing with proceedings? The member is quite correct in referring to custody from me and detained at police station, yes. We have heard further evidence of that. It just seems that the system is not set up for it. The law society has said that the use of virtual custody has raised significant operational and human rights concerns. The evaluation of the Falkirk pilot May 22 was critical of the virtual custody process absent significant additional investments, stating that the issue of fairness to the accused is fundamental in the physical separation. That is an important point. Many lawyers have complained that the physical separation of the accused, to speak to the solicitors, has been disrupted through the pandemic, which I think is accepted and has been necessary. However, why would it be necessary now that we do not want to reinstate that fundamental principle that an accused person should be able to see their lawyer before they appear before the court? That is simply not possible where the accused appears direct from custody in a police station. It is far from satisfactory. As the member said, Police Scotland's conclusion is that they cannot fully support the virtual model without a complete overhaul of the custody process and significant investment in resource is telling. I am inclined to push for that reason. To the Government, it strikes me that it is a very costly exercise to have a share of 6930, and all the clerks are a very poor experience if anyone is interested in whether that matters or not. It is a very poor experience for staff to sit all day in a court, which started 45 minutes late due to the Crown not preparing the cases on time, so there are lots of issues that are slowing down the process that needs to be looked at. To me, that is totally unsatisfactory. It does not meet the interests of justice, as far as I am concerned, and, at least until such times we can provide a level of quality of electronic means to do this. I do not even think that it would solve the problem that solicitors cannot confer with their accused while they are separated by one being in a police station and one not. I am not convinced in the long that that particular aspect of the case, although I do accept for the record that there are aspects of court proceedings, which I think that many people have put perfectly acceptable where the balance of justice is not interrupted and it makes sense, but on this one, to me, it does not make sense. Cabinet Secretary to speak to amendment 1005 and other amendments in the group. Thank you, convener. The committee considered issues around virtual hearings carefully during stage 1. It is clear that, although some stakeholders are extremely supportive and would like to see their use extended further, others have concerns that we need to explore with them before making decisions on any permanent measures in future bills. We are committed to doing that. Indeed, we have already begun, including through the consultation on improving victims' experiences of the justice system that we launched just last month. I will mention in passing that Ken Dalling, when he gave the President of the Law Society, when he gave evidence to this committee last September, said that, I am a relative convert to virtual custodies. That approach seems to be well received by the accused who are appearing because they do not have to be bussed around. I would also say just in relation to the points that were made by Parliament, that we are all working here from the best of intentions to try to get the best justice system possible, but we are dealing in relation to the bill, to things that we believe to be necessary to respond to the pandemic. It may be argued, of course, that the larger elements of the pandemic have receded in recent months, but I do not think that we can take that as meaning that the threat from Covid is over. It is probably more likely to be prevalent within a justice system, whether we are talking about prisons or even juries, where people are obliged to be in certain spaces at certain times. In the meantime, the temporary provisions in the bill enable virtual hearings to be held, and they remain a vital part, in our view, of supporting the recovery of our courts. They give courts crucial flexibility to help to address the backlog, and they enable the continued use of remote jury centres, which will remain a part of the court services contingency planning. Virtual hearings have been used particularly extensively for civil procedural businesses, business rather, and the civil courts will continue to rely on those provisions in the bill until new court rules being developed by the Scottish Civil Justice Council come into effect. The continuation of those provisions enables partners across the sector to continue to build the evidence base that will allow us to take longer-term decisions on how and when virtual hearings should be used for criminal cases. I am aware of previous discussions with the committee where there is a difference in views, but I think that it is right that we should take some time to explore those further, certainly in terms of any future permanent changes. The committee itself recognised in its stage 1 report and recommended that more virtual trials need to take place in the criminal courts, including through an extension of the pilot of virtual summary trials led by Sheriff Principal Pyle. Again, that relies on those provisions for that to happen. For that reason, I cannot support Paul MacNeill's amendment 1035, which would remove, in my view, crucial flexibility that the criminal justice system has relied on and continues to rely on in its response to mitigating the impact of the pandemic on court users, including victims and witnesses. It would lead to increased delays and undermine the development of an evidence base to inform long-term decisions on the role of virtual proceedings. Even if some people think that the pandemic is largely over, the backlog is far from over, and we have always known that to be the case. Amendment 1036 focuses specifically on hearings where the accused person is in custody. It would require those hearings to be held in person by default. Paul MacNeill has voiced concerns with the operation of virtual custody hearings, and I know that this is an issue that Police Scotland has previously written to the committee about. In its letter, it highlighted recent improvements to the technology that supports virtual custody hearings and underlined its commitment to ensuring that custody hearings run as efficiently as possible so that people are not detained in custody for longer than is necessary, and it just strikes me listening to the experience that Paul MacNeill has passed on that this Parliament has had its own issues with virtual transmission of proceedings. It is important to remember that, although there have been challenges with the implementation of virtual custody hearings, as with any technological innovation, the provision remains a valuable tool to support safe appearances from custody. For example, if an accused person has or is suspected of having Covid, maintaining the provision ensures that the custody hearing can take place safely by video link. There remains, of course, an option for individuals to request an in-person appearance if that is preferred. For those reasons, I do not support amendment 1036. I would invite Paul MacNeill not to press her amendments. I would then move on to amendments in my name. Amendment 1005, 1006 and 1007. Those amendments would make it the default position that appearances on undertaking take place in person rather than virtually. Appearance on undertaking means that the police have charged a person with an offence, but rather than keeping the person in custody and bringing them before a court, they place the loose person on an undertaking, agreed to and signed by that person that they will come to court on a particular day. The Crown Office and Procurator Fiscal Service has brought to our attention that there has been some uncertainty about how the current arrangements for virtual attendance in the First Scottish Act should be operating in relation to undertaking hearings. In practice, those hearings have continued to have been held in person, and those amendments put the matter beyond doubt to reflect operational practice. We will continue to consult justice partners on the operation of the First Scottish Act provisions as they relate to undertaking hearings and also whether there are other types of hearing that would be beneficial to be moved to being in person by default to reflect operational lead in practice, and, if so, we may bring forward further adjustments at stage 3. If I can turn to Jamie Greene's amendment 1010, I am supported of gathering and publishing data on virtual trials as part of building up an evidence base that can inform decisions on a permanent approach. However, it is essential that any requirements that we create for the publication of data from SCTS are workable and not unduly onerous on a system, which is, as I mentioned before, seeking to tackle the backlogs efficiently and effectively. It is also important that any data that is published is robust, meaningful and focused. As currently drafted, this amendment would capture a sweeping range of cases, including many that we might not think of as virtual trials. For example, it would capture all cases where a vulnerable or child witness gave evidence by video link as part of standard permitted special measures that have been in operation for many years and have nothing to do with the Covid legislation or the provisions proposed in the bill. It would also require the court service to publish information that they do not normally hold, and they have advised us that it would not be possible to deliver the amendment in its current form. If Jamie Greene is willing to withdraw the amendment, I will ask my officials to work with the court service to agree a workable focused approach to publishing data to improve the evidence base on virtual trials on a non-statutory basis. With that in mind, I would invite Jamie Greene not to press his amendment. Finally, if I can come to Katie Clark's amendment 1034, which would require ministers to prepare and lay regular reports setting out the progress that has been made in the implementation of virtual courts, it is important to remember that, as Pauline McNeill has already made clear, there is not a consensus on what the future of virtual courts should look like, that we can therefore progress towards in a linear way. The committee's stage 1 report recommended that more evidence be built up on the impact of virtual court and tribunal business before any decisions were made on permanent arrangements. We agree with that approach. Our response to the committee's report set out work that is already underway to gather more evidence on virtual court proceedings. The findings of consultations and research will be published in due course, and they will inform our decisions on the next steps. However, we do not want to pre-empt the results of this work, nor do we want to cut across the work of the Scottish Civil Justice Council. They have already consulted on proposed new court rules concerning the mode of attendance in civil proceedings and are developing plans to implement changes. If drawing on the evidence and on engagement with partners, we decide to legislate to put virtual criminal courts on a permanent footing, the Parliament will have the opportunity to scrutinise any legislation that we bring forward. In addition, members can use parliamentary questions or the committee system to seek information from the Government on its progress and developing policy on virtual courts. Therefore, we do not support this amendment and we invite Katie Clarton not to press it. I thank Pauline McNeill for opening this group. It is an important discussion and an interesting one at that. My specific amendment 1010, as the cabinet secretary has alluded to, establishes a requirement for the Scottish Courts and Tribunal Service to publish information regarding the operation of trials where there is a virtual element. It uses the word attendance by electronic means as opposed to the word virtual for my technical point of view, but I do also appreciate and accept that that does encapsulate perhaps a wide range of trials that already utilises electronic means. However, in the short timescales that we had, this is the drafting that I came up with for stage two. Essentially, what I am asking is the SCTS, and I do understand and appreciate that they are extremely busy and extremely overworked and have a huge backlog of cases. That is well-known, but it addresses the issue not just reflecting the stage one report from the committee, but an important piece of work that will have to be done to establish on what effect the use of electronic means and trials that heather 2 was not used should be something that is continued or made permanent. Our own stage one report stated that a greater evidence base—sorry, I am quoting for the benefit of the record—is needed about A, how virtual trials work in practice, B, what advantages they deliver and any disadvantages, C, the outcomes of virtual criminal trials and D, any unintended consequences. More importantly, this evidence base is needed before you can be taken as to whether the temporary provisions in the bill should be made permanent in future legislation. We already know that there is a wide range of views on the Scottish Lifters Bar Association told the Justice Committee that I am wholly disappointed by the resulting systems that we are now working with in relation to virtual courts and virtual trials. On behalf of the vast majority of the profession, I think that the experience has unfortunately been nothing but a resounding failure. That is one end of the spectrum, I appreciate, but I think that the work concerns raised about the solemnity of proceedings and justice, which many of us felt were not present during virtual trials. The Faculty of Advocates expressed some sympathy towards that view, although in slightly less strong terms, by saying, if implemented, this would create problems with access to justice, the quality of justice and inequality. Not just within the defence sector, if you like, but those who represent the wider public also expressed concerns. Sysons Advice Scotland told the committee in their submission to us that we are concerned that the reliance on digital means of participation in court business risks people being excluded from the justice system. We believe that more support is needed to enable vulnerable and digitally excluded groups access to justice. Of course, on the flipside, many support the ongoing use of virtual means, including the Herod League and Virtum Support Scotland, which we also submitted evidence to us. I think that that brings me on to the substance of the amendment. The particular information that I am asking for, I appreciate, is very specific and probably quite wide-ranging, but the essence of the amendment is that the committee said that this evidence base should have already been provided. This information should already be out there, and we should have already analysed that before we take a view on whether those measures should be continued. The problem is that we are not in that position at the moment, and we do not have that evidence base. The next best thing that we can do is ensure that, on the face of the bill, the SCTS will publish data that will inform not just the Government and the committee, but all the stakeholders who have concerns. I appreciate that the cabinet secretary has made an offer that, if I withdraw the amendment, I think that the word is used that he will work with the SCTS to look at what data and information can be published. Of course, I do not want them to have undue onerous workloads or information that is sensitive and should not be published, and if my amendment does that, then I accept that that is not the intention at all. I would therefore be happy to withdraw the amendment, but only on the premise that we revisit the wording of it and it still comes back at stage 3, not just that we remove it altogether and that is the end of the matter. Although I do take the cabinet secretary's face value on that, it is important that inflicting the stage 1 view of the committee is on the face of the bill somehow, in an appropriate fashion, that does not overly affect the on-going data-ray work of SCTS in any way, shape or form. That is not the intention, convener. I hope that that is a commitment that the cabinet secretary can give. Katie Clark, to speak to amendment 1034 and other amendments in the group. Amendment 1034 is a relatively simple amendment that asks for the Scottish Government to come forward with six-monthly reports to Parliament until January 2023 on the operation of virtual courts, and that, of course, is to enable effective scrutiny. We have already heard from Paulie McNeill in relation to virtual appearances from custody and what can only be called shambolic arrangements on occasions, which are not so much about the principle of virtual attendance but about how it operates in reality, although, of course, there may be principled issues involved also. Jamie Greene spoke about the disappointing response that many in the profession have given to some operations in terms of virtual courts and some of the concerns that they are raising. We know that there have been very few virtual courts up until now. The committee has looked not in a great amount of detail but has heard some evidence regarding the pilot in the northeast that involved a relatively small number of cases. Some of the content of that report was quite surprising because one of the concerns was that it would operate against the defence and that there would be more convictions, but it was the opposite in the report that we saw. Although, of course, that was a very small number of cases. That highlights that virtual courts may not operate in the way that we think they might operate and that the decisions that we are making are very important because there are massive changes to the legal system in Scotland. Of course, I will take an intervention. The member is quite right in saying that there are massive and quite fundamental changes. The committee agreed unanimously in our stage 1 report, and I would like to quote from it if the member will permit me. Digital justice should only progress if there is genuine merit in the proposal rather than simply being a matter of cost-saving or administrative convenience. We cannot make fundamental changes to how our court system functions and the rights of individuals involved without full and proper debate. The problem is that I am not convinced that we have yet had that full and proper debate, which is the essence of why we have both sought to amend the bill on more transparency on the data around the use of virtual courts and virtual trials. I hope that that debate will happen at some point in advance of us passing this legislation. That is correct. The cabinet secretary said that the Parliament would have the opportunity to scrutinise any permanent changes in legislation that would come forward if there were proposals to make virtual courts a permanent fixture of the legal system. If we were able to get information shared on a regular basis with Parliament and the committee, that would enable that to be a far more meaningful process. I have to say that, as a member of the committee, it took us some time to get information as to how virtual courts had operated during the pandemic. If there was a structure in place that enabled more regular reporting and required officials to come forward with that information, that would enable any scrutiny to be more effective. Of course, the outcome of that is that it is likely that the Parliament would make better decisions. That is really what this is all about. We know that, in reality, very few cases have gone ahead on a fully virtual cases. Of course, there have been elements of cases that have been dealt with on a virtual basis. For example, juries have attended virtually from cinemas, and in general that seems to have worked very well from what I can gather, but no doubt there will be views on that. It would seem likely that some stages of cases, particularly case management aspects of cases, would more likely lend themselves better to virtual appearances. Of course, I had taken intervention. Thank you for taking the intervention. Would the member acknowledge that women's organisations that support victims of domestic abuse and victims of sexual violence are very supportive of virtual trials? Yes, and I think that there is a very strong case in some situations. We have heard already about the kinds of evidence that is already taken virtually, and I do not think that anything in what I am saying would undermine provisions that exist there. I would say to the member that we cannot presume what the outcome of cases will be, given, for example, what happened in the pilot in the north-east, which was predominantly in relation to domestic abuse cases, and where there was a high level of acquittals. That may not mean anything given the very small number of cases, but it shows that we cannot make presumptions about what we think will be the implications of virtual courts, and that it needs to be evidence-led. The more evidence that the Parliament and the committee have over a longer period, the more likely we will come to the right decisions. Perhaps one of the points that the member is making is that often those giving evidence and victims may find virtual courts an easier experience, a less traumatic experience, hopefully, although no doubt it would still be a very difficult experience for them. That clearly is one of the aspects that we have to look at. We also have to look at the outcome of cases, and that is why we need proper evidence to go forward with. Potentially, those are very significant changes to the system. It may well be that case management hearings may lend themselves well to virtual attendance, but it may be, for example, where witnesses have to give evidence, and the accused has to give evidence. We would need to be clearer what the implications are in terms of whether it is possible for that evidence to be tested as well virtually as it would in an open court. As the cabinet secretary says, there is not a consensus on how virtual courts should be implemented. The cabinet secretary has previously said that virtual courts would only proceed if there was agreement on all sides and by all parties. I will take an intervention. Why did you pick the end date of 31 January 2023? I believe that the cabinet secretary can correct me if I'm wrong that that is the date that those provisions would come to an end, but it may well be that the official would want to come in on that point. I can be corrected later if I'm wrong, but I believe that that is the case. For as long as the provisions are in place, it would require the Scottish Government to come forward with a report to Parliament every six months, which would enable Parliament to discuss how it is going. I think that one of the concerns is that it might be very difficult to get virtual courts up and running if the cabinet secretary is wanting agreement on all sides, that that might be difficult to come to or may not be difficult to come to. I believe that that is exactly the kind of information that should be debated and be available to Parliament. If it is the case that the legislation is not being implemented because defence agents and the prosecution will not agree to it, that is a discussion that we need to have. I am not prejudging what would be the nature or content of the report, but what I am saying is that it is appropriate that this Parliament has the information available, and if the cabinet secretary is not minded to agree to this specific amendment, I would ask that he perhaps could consider how he could ensure that the Parliament is fully included and as much information is shared with the Parliament as possible. I think that the amendments in this section very much reflected some of the evidence that we heard in committee, and I have got sympathy with where Pauline McNeill is going, but I think that probably her amendments may go just too far in terms of that debate that Rona Mackay brought up in Katie Clark. We have the issue of virtual and remote hearings being useful in some circumstances, such as when there is maybe domestic abuse involved or other crimes of that nature. On the other side of it, there are obviously human rights issues about them always taking place and what we have heard virtually and what we have heard concerns about that. I think that the Government amendments brought forward strike that balance, and I wanted to say that in support of them. I hope that Pauline McNeill will not go ahead and push. I just want to be clear that amendment 1035 is quite specific to appearances from Custodian police stations. It does not interfere with any of the other discussions about what would be the balance of victims in the system. The victims are not involved in this process. That is where solicitors generally—if someone appears in custody physically, they get to see the solicitor appearing in court, arguably it goes smoother, and for a period we didn't do that. Maybe you were unclear about that. I am really interested to push, just for that reason. I know that, but I was coming to that, Pauline, thanks for that clarification. I am aware that it is about people in custody, but we are talking about the various angles around that. In Jamie Greene, I think that she mentioned herself about police concerns about resources and stuff as well. I think that the Government amendments do strike the right balance, and I would support them in terms of the latter two amendments. Jamie Greene's in Katie Clark's, of course. It goes without saying that we would all want reporting mechanisms in place that allow us to get a sense of what is going on. It has been a couple of years doing virtual trials, hearings and appearances in court, but it is still not a whole load of time. Therefore, I think that the cabinet secretary's offer to Jamie Greene is a valuable one, and I hope that Jamie Greene will take that up when it comes to him pressing or withdrawing the amendment. I think that there shouldn't be any doubt that any Government or any member of the committee doesn't want to get the best information about how virtual appearances in hearings are working. I support the Government amendments here, and I think that it is a good offer for Jamie Greene that has been made as well. Pauline McNeill, to wind up and press or withdraw? First, I strongly support what Katie Clark and Jamie Greene are doing in terms of trying to get a commitment from the Government that there needs to be evidence-based, not just in terms of the experience of witnesses and victims and the accused, but also the outcome of cases. That is really important to have that debate. In relation to my own amendments, as I said, I am keen to push 1036, but I want to say a few things about why I will be happy to take an intervention from the cabinet secretary so that I want to be clear in my own mind, because some of the timescales can be confusing. First of all, is the law society quite clear and have said that the physical separation of the accused, the solicitors and the courtroom has had a serious impact on the overall process? The separation has made it harder for solicitors to communicate effectively before enduring hearings with the Crown. I have not heard anything so far that the Government would be concerned at all about that in terms of—that is not satisfactory, surely, in anyone's book that that should be. If the timescale for this was shorter, I could say, well, okay, maybe we will just put up with it a bit longer, but I need to clarify the timescale here. I thought that it was 2023 or that it pertains up to 2025. Is it possible that you could—that would help me a lot to know the answer to that. I thought you would say that. That gives me a very serious—sure that the Government can't be seriously saying that they would put up with an unsatisfactory situation, the law society has highlighted until 2025. That is not right that the accused cannot consult with their solicitors. Never mind the second issue, which is—there has been a commitment, obviously, to improve the technology, but is that technology going to improve before 2025? I would like to hear if there are plans that are more immediate than that. The problem with your amendment as drafters is that it simply removes an appearance from custody as an exclusion altogether, which means that it cannot happen. If it were the case that the accused held in custody agreed to virtual hearings and were happy that that would be so, would it not be better that there is some flexibility there, that they could happen, albeit notwithstanding the concerns that you have validly raised, but should we have that flexibility somehow? Maybe that is something that we can address at stage 3. The member's query is that I am not opposed to flexibility. What I am trying to stop is an automatic virtual appearance, which is what we seem to have at the moment. I mean, if the Government were prepared to consider the default position in which they have, I think that that would be preferable. However, that is my concern, as we could potentially go to 2025 and say, well, you know, that has been agreed by the Scottish Parliament, you can take up to 2025 and the default could be virtual. I think that no one can be satisfied with that. The quality of the link is what I have seen. I suppose that it is not the same in every court, but this is Glasgow. I mean, I am assuming that in the biggest court in the country, if we cannot get it right there, what is it like in other places, but then you can correct me if I am wrong about that. I do not know if the Cabinet Secretary wants to see any more before I conclude. I mean, I am kind of inclined to push, but I mean, Jamie Greene makes quite an important point, which is not my intention to not allow flexibility, but it is my intention not to allow the Government to go to 2025 and say that virtual appearances are satisfactory just because we have backlogs, that that concerns me a lot. If it would be helpful, I am happy to respond. One thing, of course, is 2025, but that will have to be agreed by Parliament on an annual basis if the bill is approved, so there are those further checks that would apply. Just to reiterate the point that everybody involved does not deal with the entirety of Pauline McNeill's concerns, but everybody's concern is trying to improve the practical implementation of this, but we are finding a way towards it. I will come back to the points that Jamie Greene and Katie Clarkson mentioned shortly, which cover this as well, but we are trying to improve it. There is no question of just sitting back, except in the flaws that are there. To be honest, the point that Jamie Greene has made, I just do not know whether that is possible. All I would say is that if I am right in understanding his kind of suggestion, which is that you could pull out that part of it, which dealt with the consultations between a client and a defenceless, I do not know whether that is possible. I would undertake to have discussions with officials to see if there is anything that we can work with Pauline McNeill at first stage 3. I cannot commit to doing that to actually bring it forward, but I can commit to undertaking those discussions, if that would be helpful. It would be helpful. I think that I am going to take that in good faith that you know where I am coming from, I know where Cabinet Secretary is coming from, and my understanding is that the amendment that I asked to be drafted, actually, was to remove the default of virtual just for Jamie Greene's benefit. It was not my intention, not to allow that flexibility, but I would want to be sure about that. If the Government, at least, is willing to open the channels of, I mean, I would even accept a shorter time period, for example, or some much bigger responsibility in the Government to review that at some point before 2025, and on that basis, if we can have a further discussion. That was not what I was offering, what I was saying was in relation to pulling out Jamie Greene's suggestion. If it is possible, and I generally do not know if it is possible, practical to do it, to pull out that suggestion for a particular category of, if you like, activities, and we are talking really here about, as Pauline McNeill mentioned, the discussions between a client, and so if it is possible to pull that out, I do not know whether it is. I am willing to discuss with officials and to have a further meeting with Pauline McNeill if she finds that useful to discuss whether it is possible, but I cannot commit to doing it at this stage. On that basis, on good news, I am not going to move either of these amendments, convener. Okay, thank you. Can you just confirm that you wish to withdraw? I want to withdraw amendment 135. Thank you very much. Are committee members agreeing? Thank you very much. So I now call amendment 11005 in the name of the Cabinet Secretary already debated with amendment 1035, Cabinet Secretary, to move formally. The question is that amendment 1005 be agreed to, or are we all agreed? I call amendment 1006 in the name of the Cabinet Secretary already debated with amendment 1035, Cabinet Secretary, to move formally. I call amendment 1036 in the name of Pauline McNeill already debated with amendment 1035, Pauline McNeill to move or not move. I call amendment 1007 in the name of the Cabinet Secretary already debated with amendment 1035, Cabinet Secretary, to move formally. The question is that amendment 1007 be agreed to, or are we all agreed? I call amendment 1010 in the name of Jamie Greene already debated with amendment 1035, Jamie Greene to move or not move? Not moved. Thank you and we'll now move on to the next grouping. I call amendment 1037 in the name of Russell Findlay, grouped with amendments 1038, 1039 and 1040. I remind members that if amendment 1037 is agreed to, I cannot call amendment 1038 due to a preemption. Russell Findlay will move amendment 1037 and speak to all amendments in the group. Those four amendments all relate to fiscal fines and the emergency provision to increase the rate of those from £300 to £500. Starting with 1040 and indeed 1038, if those amendments were accepted, that would negate or cancel out effectively the need for 1037 and 1039. Starting with 1040, what that does is ensures that victims of crime are notified when a fiscal fine offer has been accepted. It makes it a duty of the Crown Office to inform complainers of those outcomes. Furthermore, it states that where rejection of a fiscal fine has occurred, the fiscal would be obliged to inform a complainer of the result of subsequent prosecution or any or non-prosecution, as the case may be. We have got a fundamental concern about the lack of transparency with fiscal fines. The public do not have any way of finding out about disposal as things stand and neither do victims unless they go seeking this information. They are only told, according to Crown Office, that an alternative prosecution was pursued. Many will not even know that there has been a disposal. In some cases, those can relate to serious crimes, including crimes of violence. Going on to amendment 1038, this relates to the increasing limit from £300 to £500. It seems inevitable that, in so doing, this brings into scope crimes potentially of an even more serious nature. The problem that we have is that we do not know because the evidence to the committee from Crown Office and Scottish Government has been unclear about whether more types of offences apply. Frankly, there has been a scarcity of data in which we can make this decision, but it seems inevitable that a £500 increase is a potential not just to increase the seriousness of offences but also to increase the number of fiscal fines. I think that there is another issue about fiscal fines, where because they do not count as criminal convictions, if they are accepted, I am not even sure if many victims are aware of that difference, if that has even been properly explained to them. My concern is that the greater use of those on the basis of Covid justification with no real measure and analysis of their understanding or their implementation could potentially undermine public faith in justice. As I have already touched upon, fewer victims will even know that their case is disposed of. Can the member clarify what his alternative to fiscal fines is? Are you suggesting that there should be a custodial sentence instead of fiscal fines? I do not think that it is one or the other. The debate today is not about an alternative to fiscal fines. Fiscal fines exist, and this is about merely extending their scope. The amendments would require proper explanation to be given to the victims. Is there an alternative to being a custodial sentence? I think that there are many things in between fiscal fines and the custodial sentence. My understanding is that, if fiscal fines did not exist, the prosecution would have to decide whether to prosecute the case or not, whether they felt that they could prove the case in court and that it was in the public interest to take that forward. Is that your understanding of the position? I am just coming on to that. Last June, the Deputy First Minister, John Swinney, gave evidence to Parliament to the effect that if an individual was to refuse a fiscal fine, the offer of a fiscal fine, that would be in a quote directly for the record, treated as a request by the alleged offender to be prosecuted for the offence. Those have been sold effectively to the public as an alternative to prosecution. However, there is some data in the public domain that shows that around 30 per cent of rejected offers saw no further action being taken by prosecutors, which somewhat undermines what Mr Swinney told Parliament. In 2018-19, 39 per cent of those who refused offers of fiscal fines nothing further happened in those cases, which is quite a substantial number. The following year, that rose slightly to 40 per cent. The concern is that there are already concerns about how those are used, how they are communicated and how the presumption to prosecute does not actually occur. Therefore, extending their scope, both in value and the lack of communication around them, might fuel that. It sends a message to people who have committed those crimes that they may be able to break the law. They may take the gamble in knowing that, by rejecting the offer of a fiscal fine, there will be no consequences for them whatsoever, which we have seen with the figures and is a betrayal of victims of crime. Going back to the values issue, I think that if it needs to be increased, if the Government is adamant that it must be increased from £300 to £500, as has been the case so far with the Covid legislation, we need to know a lot more about what types of crimes it encompasses, how those decisions are reached, proper, meaningful data, which the public and the committee would need to know about to make that decision, and that is lacking. For those various reasons, I would be interested to hear some response from the cabinet secretary. Thank you. Would any other members like to come in? I am sympathetic to what the cabinet secretary is trying to achieve here. I have felt over the years that when there is a request or proposal to extend fiscal fines, it is important that the legislators are clear what the parameters are of how that is used. I think that that has been difficult to gather information in the past. I also think that it is fair in those circumstances for victims to be told. I would also say that I know anecdotically of cases where people have said, well, I did have a defence, but probably I just thought that rather than go through the whole court process, I will accept a fiscal fine, so that is my only... Was the member happy to hear that? That is another side of the coin, but it speaks to the same issue, which is that we do not know enough about how those are being used, whether they are being used by people who think that they can effectively invert commas get away with a crime by refusing a fiscal fine or, indeed, people accepting wrongdoing, which they do not believe that they were actually guilty of for convenience sake. I would agree with the member wholeheartedly on it. It is a bigger picture, and that was the point that I thought it needed addressed as well, that there is some anecdotal evidence that suggests that people pay their fiscal fines because, even though they have a defence, they just think, well, it is easy to go through a court process as well. One of the reasons is that 39% possibly are people who thought that they did want to go to court, so they did not pay the fiscal fine because they felt they had a defence, and so there are lots of different factors in there. However, in principle, I do agree that we need more information around this. We have been here before. We extended those powers many years ago from 100 to 300. Those are extensive powers that the Parliament has been asked to give, albeit on a temporary basis. Certainly, if they were on a permanent basis, I would be voting against increased to 500. I want to pick up amendment 1038 on raising the bar of fiscal fines up to £500. I think what the cabinet secretary will need to answer the fundamental question is whether that is just raising the amount from a financial point of view, in which case I have absolutely no problem with it, or by raising the financial cap from £300 to £500. That does, in any way, encompass offences that previously would not have been included. That is the point of this amendment, which we do not know at the moment, and if we knew it would be helpful. If by raising it the argument is made, that allows us to dispose of more offences, more efficiently, more quickly, get through the backlog and all the things that I suspect will be here, then what we need to know is what types of offences are included by raising the fiscal fine to £500, because I do not think that it is just as simple as saying that it is just going from £1 to £3 to £5. If it has a knock-on effect on the types of offences that are then encapsulated by that new bar, then that is a whole entirely different matter, which is absolutely subject to proper scrutiny and debate, which we have not had and are yet to have. I think that what my colleague there is trying to do is to probe that they may only do so if fiscal fines were already an option in the sense that we are not changing the scope of where and when fiscal fines can be used. The point around those who refuse a fiscal fine option, well, there really are taking a gamble, but it is quite a well-informed statistical gamble, I would say. If there is a chance that 4 in 10 will not be prosecuted after refusing a fine, I think that that would come as a matter of concern to us. Is it the case that the procurator ffiscals are not proceeding with those cases in any other disposal simply because of the workload that they have, because of the backlogs that we have spoken about already? Again, we have not taken any evidence as to why so many of them are then not followed through when a fine has been rejected. Is it simply that the case is not strong enough, in which case why are they offering a fine, or why is it even getting to that stage? If there is a case, but they simply do not have the capacity, the resource to do it, which I suspect the latter is more true from those that I have spoken to. The issue around amendment 104, though, about victim notification, is an entirely appropriate one. I think that it remains unacceptable that a complainer is not told about the outcome of such offers, not necessarily the nature of the offer. There may be reasons why that should not be made public to complainers or victims, if you like, but the fact that they are not told itself is a sorry matter. Moreover, when it is being rejected, what happens thereafter? This is information that they are entirely entitled to, in my view. I think that trying to assert that that is on the statute books is… Do you recommend not to take an intervention? Yes, I would. Just in respect of 1040, nonwithstanding the issue of Covid and emergency legislation, does he agree that the two provisions in that amendment should be part of the legislation? That should be happening anyway. It is ridiculous, but I think that the point is that we are using the legislation that I have before, which is already making changes that are in the interests and convenience of other justice stakeholders. Here is one that is in the interests and convenience of victims, which is another stakeholder in the justice process. We can use this bill as an opportunity to improve outcomes for victims, then so be it, and I am happy for this to be the vehicle accordingly. I look forward to hearing what the cabinet secretary has in response. I am sure that Jamie Greene will not be surprised to hear a follow-up debate during other committee sessions. I have huge reservations about these amendments. In terms of 1040, I disagree with what Jamie Greene has just said, because the whole purpose of a fiscal fine, as the fine is offered in that individual, then does not go through the due court process, where they are found guilty or innocent. Therefore, while I have sympathy with victims getting to hear about what has happened in their case, if somebody accepts a fiscal fine, it is a non-conviction disposal. It remains on their record for two years and can only be used in exceptional circumstances, such as another appearance at court, as a source of information. The unintended consequence of that could be that, if individuals are told about that, the result of the individual who receives a fiscal fine could be the same as having been convicted in court in terms of the impact on them in the community. There are various examples. There might be situations where folk might not have a lot of sympathy with that, but there might also be situations where a young teenager who has himself got involved and bothered could have a massive impact on the rest of their lives. Therefore, the whole purpose around the Crown Prosecution Service having access to those disposals is so that it can use judgment and try to divert people away from prosecution. I am sorry, Russell. Thank you for taking the intervention. Does the member perhaps agree that this may be a fundamental element of transparency and open justice in the victims of crime, whether they are serious or less serious, should be entitled to that basic information as to how the case was disposed of? I get the point where you are coming from and it is an issue that you have continually highlighted in your work tone. However, in terms of that particular amendment, I think that the fiscal fines are a fundamental part of the justice system, allowing a diversion from prosecution. There has to be a balance and a line at some point about what the rest of the community can be told. If somebody is going to accept a fine of this nature, they are accepting that they do not need to go to court, they do not need to prove their innocence or have their guilt proved in this manner, so I have just got real concerns about it. I am not saying that there is not any merit at all in what you are saying, but it is not for the amendment. It would take a massive change in how we do justice in this country. I will speak to those on 104.0. You have not started on 104 yet. Just based on what you have been saying, I have been listening to the debate with great interest. I would put it to you, Mr McGregor, that if you were the victim of a crime—I hope that you never are—you would want to know what had happened in that case. If police had arrested somebody, you would want to know that. You do not need to know their name necessarily, but you do not need to know their name. You would want to know what happened in that case. Is that not the point of Mr Finlay's amendment here? I think that the member is trying to over-depersonalise that he does not know whether I have been a victim of an offence or not, and does not know what my reaction was or would be to finding that information. I think that trying to bring it down to that level by saying, directing that to me is probably not appropriate, I would say. Will you take another intervention? I will not finish what I am going to say, because I think that what you would find is that you would find that some people would want to know and others wouldn't, but that is not the point here of this amendment. The point that I am making is that if it is about a fiscal fine—if somebody goes right through a court process—it would be public information. If they go right through a court process and are found guilty or not guilty, whatever the case might be, the public is aware of that, and you would find out what the disposal is, etc. The whole purpose of fiscal fines is to avoid prosecution, so therefore we need to draw the line on what information we share somewhere. Will the member not accept that, and I will allow him to come back in as an intervention? Thank you. Let's not personalise it then, if we don't. Let's not talk about you, but let's talk about general victims of crime. I think that you made the point that any victim of crime wants that basic level of information. If I was a victim of a crime, then I would want to know what had happened in that case. I would want police to tell me what they were doing. If it got further than police from this case, we would be talking about fiscal fines. All you want to know is what has happened. Surely that is not unreasonable. I am not saying that the principle of what the member is saying—I have already said this about Russell Finlay—is that he does not have some merit, but what I am saying here is that this is not where this fits into our criminal justice process. That is why I have concerns here. In terms of the 103A, I have some concerns about that, because I think that it is restricting potentially what the Crown Prosecution Service can offer those fines for. Again, we heard during the evidence that there are concerns that perhaps the gravity of the offences could be increased, that fiscal fines could be used for, but I think that we have to trust the Crown Prosecution Service to act in the interests of justice. I believe that they always do, so again, I am not supportive of that. Thank you, convener. Before going on to the individual amendments, I want to make a couple of general comments to reiterate that those are temporary measures that we are seeking to extend. We have already increased the limit to £500. That has perhaps not been fully clear. I also want to say that some of the questions that have quite legitimately been raised can really only be answered by the Crown Office and Procurator Fiscal Service. I cannot answer for them in relation to that. Different jurisdictions have tried to deal with those things in different ways, but in Scotland it has been our practice to make sure that those powers are exercised by the Crown Office and Procurator Fiscal Service. Fines can be issued by the police directly in England and Wales as well, so we have taken a different approach in that regard. First, I am dealing with amendments 1, 0, 3, 7 and 1, 0, 3, 9. Those both seek to remove provisions originally made through the first Scottish coronavirus act, which enable alternative action to prosecution to continue to be taken in a wider range of summary cases as an alternative to prosecution in court. Amendment 1037 seeks to remove the provision in the bill that retains a further period, the increase in the maximum level of available fiscal fine from £300 to £500. That measure has been enforced since 7 April 2020. It represents a small but important part of the wider response to the on-going recovery of the justice system from the significant impacts of coronavirus, which it has expected to last for a number of years. The increase of the available upper limit of fiscal fine to £500 is allowed. A greater number of cases to be diverted from summary court proceedings without the need for court procedure and associated appearance at court. That is crucially freed up the courts and prosecutors to deal with more serious cases and ease the burden on the courts as they deal with the backlog that has been built up during the pandemic. That is no theoretical or hypothetical situation, and that has a direct effect on how we can deal with the backlog, the witnesses, the victims and everyone else involved in those cases. Amendment 1039 seeks to remove the provision in the bill that provides for a revised scale of fixed penalties. As members will be aware, any penalties offered by a prosecutor must reflect the scale prescribed under the Criminal Procedure Scotland Act 1995. The First Scottish Act introduced a new temporary fiscal fine scale to give effect to the increased upper limit of £500. The bill makes further minor adjustments to the fiscal fine scale by introducing a temporary, more balanced nine-point scale. The new nine-point scale includes the seven levels of fiscal fine that were available to prosecutors before the First Scottish Act, up to £300, and it adds two new levels of fiscal fine to the scale, up to the new maximum of £500. That revised scale provides for more balanced increments and crucially ensures that there is no increase to the level of fiscal fine offered in individual cases, which should have been dealt with in the same way before the pandemic. That allows for proportionate penalties to be issued by prosecutors for lower-level offences, while also providing a higher maximum penalty for appropriate cases. Retaining the ability for the Crown Office and the Fiscal Service to divert a greater number of cases from the courts through this measure is an important and proportionate part of the wider approach to enabling the justice system to recover from the impact of coronavirus. In accordance with the guidance issued by the Lord Advocate, prosecutors have been directed to first consider offering a direct measure, in particular a fiscal fine, in relation to appropriate cases that would otherwise have preceded in the justice of the Peace Court. In your opening response, you talked about some of those questions that can only be answered by the Crown Office. I think that what we still do not know and you may be able to come on to this is whether the scope of the types of offences has been broadened or not, and if so, what types of offences have been added to those that can be considered? I think that I have started to cover that and I am about to cover it a bit further, and to the extent that any of that remains unclear, I do think that those are questions for the Crown Office and Fiscal Service in which I do not want to intrude. I will repeat that last point, because it is directly relevant to the point that Mr Finlay raises. In particular, a fiscal fine in relation to appropriate cases that would otherwise have preceded in the justice of the Peace Court. That measure will only be used where such action is considered by independent prosecutors as appropriate in the public interest, having regard to the individual facts and circumstances of each case and the Crown Office's prosecution code. I know that the committee has taken evidence from the Crown Office on this issue. That maybe helps with some of the points that have been raised so far. Just to confirm that fiscal fines are not mandatory penalties, there are safeguards built into their operation. Anyone offered a fiscal fine as an alternative to prosecution may refuse such an offer by giving notice to the court to that effect. That refusal is treated, as we have heard, as a request by the alleged offender to be prosecuted for the offence. The fiscal will then decide what action to take in the public interest. That measure allows where appropriate for a greater range of cases to be dealt with outwith the court setting, and it remains an important part of the on-going recovery of our justice system from the impacts of coronavirus. Is the current Secretary personally comfortable with the prospect that where a fiscal fine has been offered, and that has been rejected, on the premise that no, I am not guilty of this offence, I would like to be tried properly, having been accused of something. There is no further action. Essentially, it is not a small proportion, it is a very large proportion where there is no further action. Does that not simply suggest that it is worth the gamble just to say, no, I reject the fine? Of course, that is a case of question for each individual involved in this process. All I would say is, as has been mentioned already, the point about what further action should be taken comes down to the fiscal, and I cannot stand in the place of the fiscal. It is also true to say that recently we have seen a case of around £4 billion fraudulently claimed under the coronavirus act for business support where no further action is taken. The point was made by Fulton MacGregor that there are lines that are drawn, and Governments have to decide where those lines are drawn. I would not have drawn that line in that particular case, but in this case I think that the decision as to whether to pursue further a case is one for the fiscal, and I do not want to get involved in the fiscal area of responsibility. As I have said, the measure allows for a greater range of cases to be dealt with. I should say that I would ask the committee to reject the amendments 1037 and 1039. In relation to 1038, on the face of it, the amendment 1038 seeks to restrict usage of fiscal fines following the increase in the maximum value of fiscal fines to £500 to fences where fiscal fines were already an option prior to the increase. I assume that that is intended as an alternative to amendments 1037 and 1039, which would remove the new upper limit. However, it is a long-standing part of criminal procedure, dating back to the mid-1990s, that fiscal fines are available for use by the Crown Office, subject to the general restriction that they can only be used for offences capable of being tried summarily. That did not change at all in the Coronavirus Scotland Act 2020. As such, as a matter of law, there are no offences that are now capable of receiving a fiscal fine where, prior to the 2020 act, such offences could not be used for fiscal fines. There is one exception to that, which is any offences created since April 2020, which would include coronavirus-related offences. The first limb of amendment 1038 does not actually have any meaningful practical effect. The second limb requires a Crown Office to provide details of offences where fiscal fines were used prior to the increase to £500. Those details are to be provided to the Scottish ministers. It is not clear to me what use the Scottish ministers are to make of that information. It is perhaps intended to support consideration of how the intended effect of the first limb of amendment 1038 is to be monitored. However, it is constitutionally inappropriate for the Scottish ministers to be required to assess independent prosecutorial decision making in the manner that might be suggested by the amendment. More fundamentally, because there is no meaningful practical effect achieved by the first limb, that makes the second limb redundant. Throughout the pandemic, the Crown Office has provided to the Justice Committee regular detailed reports on the usage of their fiscal fine powers. The Crown Office is happy to continue to provide information, such information that might be sought through, for example, correspondence or parliamentary questions. I don't accept it as a matter for the Lord Advocate in the Crown Prosecution Service, but I have had arguments over the years, as a legislator, that they ought to provide more information because, at the end of the day, we are still being asked to make a decision that can impact on the people we represent. I don't disagree with anything that you have said, cabinet secretary. It is a matter for the committee, if we are at all concerned about this, to go at stage 3 and ask the Crown to clarify it. However, I am clear in my own mind that it is not unreasonable for us as legislators to ask the Crown Office if we extend those powers to 500 albeit in a temporary basis what would be the bread of offences albeit on summary that they would use them for. However, I have to say that my past experiences have refused, and I have to put on record I disagree if that is the position that the Crown Office takes to us as legislators by not providing us some transparency on how they would use an extra £200, and just for the record I do totally acknowledge the Fulton MacGagals contribution, and I believe that fiscal fines are really important. For all the reasons that the member said, my only disagreement as a legislator is that we are entitled to have an understanding before we press our buttons for yes or no to what powers are we giving the Crown Office to prosecute or not prosecute people, and it would be wrong for us to be in the dark on that, I think. I would say that the letter that another committee has received from the Crown Office set out a detailed breakdown of how fiscal fines are being used in response to the Stage 1 report, and that included fines up to £500 and taken together with what I have just said about the previous use of the powers dating back to 1995, the same range of offences with the addition of those offences that have been created in the past couple of years mainly around coronavirus restrictions. In my view, that gives a degree of clarity, and I am sure that Pauline McNeill will understand if I cannot answer for the Crown Office in relation to this. All I would say is that there is a practical reason why the Crown Office feels that it is not possible to provide information. I am happy to try and work with the committee in relation to that. I cannot speak for any policy decisions that they would take, but there is a practical block to any information that I have been provided. I am happy to work with the committee on that. Amendment 1038 is, in my view, defective as it does not achieve what it seems to want to achieve. In any event, I would oppose it in policy grounds, given the long-standing discretion that the Crown Office has had as independent prosecutors in the area of usage of fiscal fines going back at least to 1995. For that reason, I would ask the committee to reject amendment 1038. Finally, amendment 1040 seeks to introduce victim notification requirements upon the Crown Office, where a case has been dealt with by way of a fiscal fine. First, amendment 1040 creates a proactive duty on the fiscal to inform the complainer when a fiscal fine has been accepted by an alleged offender in a given case. Secondly, amendment 1040 creates a proactive duty on the procurator to fiscal to inform the complainer when a fiscal fine has been rejected by an alleged offender and the outcome of any proceedings that result from such a rejection. I think that it may well be the case that amendment 1040 is well intentioned, but it is not an amendment that I can support. As we have heard from the Crown Office through their written response to the committee stage 1 report, there are existing statutory obligations under section 6 of the Victims and Witnesses Scotland Act 2014, through which the Crown Office advises all victims of all case outcomes on request. That includes where a case is dealt with by an alternative to prosecution such as a fiscal fine or where a decision is made to take no further action. In other words, any complainer who wishes to know the outcome of a case, including for fiscal fine cases, can ask the Crown Office. I'm very grateful to the Cabinet Secretary for the Intervention. I listened to what you said with great interest and I also listened to Fulton MacGregor and Graham Simpson's discussion. I'm thinking about, from a victim's perspective, if they take the not insignificant step of reporting a crime, I think that it is entirely reasonable for them to expect to be kept informed of any progress. In fact, it's more likely that a few victims would want an opt-out system where they could say, I don't want to understand, I don't want to know what happened to the person that I'm accused. It seems entirely reasonable for a system that informs a victim of an outcome. For the life of me, I can't understand why you wouldn't do that. I think that that's something on which we're going to have to disagree. I've laid out, first of all, the position in which the Crown Office currently takes, but maybe some of what I'm about to say might help Mr Whittle in relation to the points he raises. So in addition to what I've already said about people being notified or being able to find out the outcome of these cases, the Crown Office will launch a new digital witness gateway service later this year and that gateway is included in the year one delivery plan for our vision for justice. Delivery in the first year will focus on providing witness access to statements and confirming availability for trials. However, Crown Office have made clear further services and functionality will be added as part of planned continuous improvements. This will include exploring the communication of case outcomes to victims through the gateway. There may be situations where the proactive communication of case outcomes, referred to by Mr Whittle and others, is considered appropriate over and above Crown Office's existing practice and that's most appropriate to dealt with in a holistic way through planned initiatives, which the Crown Office have already committed to exploring in the very near future rather than requiring it as a matter of law. In practice, the majority of fiscal fines are deemed accepted by the offender. That means unless the alleged offender refuses a conditional offer by giving notice to the clerk of court within a period of 28 days from the day the fiscal fine is issued, they will be deemed to have accepted it. Where payment is not made, this is separately enforced by the court service. The resource implications of Crown Office monitoring the acceptance of fiscal fines in this context and proactively identifying relevant complainers in the manner required by amendment 1040 would be considerable, especially before the planned work on the victim's gateway is carried out. It would put additional pressure on Crown Office at a time of significant resource pressure across the justice system and at a time when they're trying to deal with the substantial backlog, which, just to repeat, has not gone away, albeit somewhat reduced. I do think that those things might give some comfort to those, like Mr Whittle and others, who've raised concerns that the Crown Office are seeking to adapt and evolve the way in which they interact both with witnesses and victims. But for all the reasons that I've mentioned, I would invite Russell Finlay not to move amendment 1040. Russell Finlay, to wind up in press or withdraw your amendment. Thank you. That was a very fulsome debate. I'd like to start with the 1038, and I'm appreciative of the Cabinet Secretary's explanation as to why I think the word he used was defective. On the basis of that explanation, I am minded not to move it at this stage, but I do think that the committee and indeed the general public are entitled to know a lot more about what this increase will mean in real terms for people, victims of crime and indeed perpetrators. Hopefully, the Crown Office might pay heed to the various concerns that have been raised here today and make this information available to us, specifically the nature of the offences that fall under the application of fiscal fines and whether, indeed, those have been broadened due to the Covid powers that have been in place for a couple of years. Moving on to 1040, I think that it's worth putting on the record points that the debate sounded like we had some principled opposition to fiscal fines per se, but that's not the case. They serve a useful purpose in the justice system. However, the issue of people who have reported a crime not having a simple mechanism, proactive way of being told the outcome of those proceedings is fundamentally wrong. Pauline McNeill raises some interesting points about accused people, perhaps, taking a fiscal fine for convenience as a flipside to other people who are accused, not taking one in a bit of a gamble. It strikes me that the way fiscal fines are being used is at risk of turning the justice system into a game of bluff, which is in nobody's interests. Just to wind up, I think that 1040 is absolutely valid and necessary, and I encourage members to support it. Can you confirm whether you would like to press or withdraw amendment 1037? I will withdraw amendment 1038 in the name of Russell Finlay, which is already debated with amendment 1037, Russell Finlay to move or not move. I will call amendment 1039 in the name of Russell Finlay, which is already debated with amendment 1037, Russell Finlay to move or not move. I will call amendment 1040 in the name of Russell Finlay, which is already debated with amendment 1037, Russell Finlay to move or not move. The question is that amendment 1040 be agreed. Are we all agreed? No. We are not agreed, therefore we will move to a vote. All those in favour of the amendment raise your hands. All those against raise your hands. There are no abstentions. The result of the vote is that there are four votes for the amendment, four votes against the amendment, so there is an equality of votes. Therefore, as convener, I will use my casting vote and vote against the amendment. The amendment is therefore not agreed. That concludes this grouping. I would now like to propose that the meeting be suspended for around 10 minutes for a comfort break. Welcome back. Before we start our next grouping, can I politely ask members again to make points in debate as succinct as possible and when you are speaking to your amendments. If I do feel that it is necessary in the spirit of timekeeping, I will come in. We move on to the next grouping, which relates to time limits in criminal proceedings. I call amendment 1011 in the name of Katie Clark, grouped with amendments as shown in the groupings. I remind members that, if amendment 1041 is agreed to, I cannot call amendment 1015, 1042, 1016, 1043, 1017, 1044, 1018, 1045, 1019, 1046, due to preemption. I remind members of the direct alternatives in this group, as shown in the groupings. Direct alternatives can all be moved and decided on. The text of whichever is the last agreed to is what will appear in the bill. Katie Clark to move amendment 1011 and speak to all amendments in the group. Thank you very much, convener. With the exception of amendment 1021, which is an amendment on reporting, all the amendments that I have put down in this group are a series of amendments that are probing amendments on the extension of time limits, which are currently in place and which the Scottish Government is suggesting should continue to be in place. The illustrative examples are not going to speak to every single amendment, because there are so many of them. To give a flavour, the LEED amendment suggests that instead of allowing the legislation to go through, which has the effect of extending the pre-COVID time limit in relation to the time from appearance and petition to pretrial hearing, which was at 11 months and was extended to 17 months in the emergency legislation, that this period should only be increased to 13 months. As another illustrative example, the amendment 1016 proposes that instead of allowing the time and remand until pretrial hearing, which was extended in the emergency legislation from 110 days to 290 days, that should only be allowed to be increased to 200 days. The periods that I have chosen are arbitrary. They are not evidence-based, because I have not seen any evidence to justify why, for example, the 290 days is currently required to prepare between the time that someone has taken into custody until pretrial hearing. The purpose of the amendments is to try and tease out from the Scottish Government the reasoning and the justifications as to why this amount of time is necessary. It has always been said that, in Scots law, there is provision on cause shown for time limits to be extended, so it is always possible to go to court to make the case as to why the Crown has not got sufficient time and need further time to prepare the case for trial. The effect, however, of course, of the legislation that has been in place during Covid is that the amount of time that people are held in custody before they are taken to court and before the case is heard has been extended significantly. There have been human rights concerns raised by many organisations and many consider the extension of time draconian. The issue before us is whether those extensions are necessary and will continue to be necessary during the period that the legislation would be in place if enacted. The backdrop, of course, is that we still have the highest number of people in prison in Europe. I say still because that is a historic issue, which is an important issue for the Parliament to explore. Historically, Britain in general has had very high numbers of people in prison, but Scotland in particular has always had higher numbers of people than the rest of the UK and, indeed, the rest of Europe. We also have a historic problem of very high remand rates, which have increased staggeringly during the Covid pandemic. We were informed in evidence that the remand rates in Scottish prisons are currently at 30 per cent. That was a number of weeks ago, and we were given that information. We had previously been told that it is 27 per cent. It would be interesting to know whether that figure has increased again. Of course, the extension of time limits is almost inevitably going to lead to an increase in prison numbers. We have already got a huge problem with prison overcrowding, and it simply will not be possible to build more prisons and create more prison spaces in the time that is available in the time scales in the legislation. We know that some people are found not guilty at trial after lengthy periods in custody, or they are indeed received a lesser sentence in the period when they were held on remand, and we have spoken about that as a committee previously and, indeed, have referred to that in previous reports. We also know that there is always a tendency and a culture, almost in any establishment, for people to work to deadlines. The concern, obviously, must be that, if there are longer deadlines, that means that there is less pressure to ensure that cases are prepared as speedily as possible. As I say, those are probing amendments. They are not evidence-based in the sense that I have not taken evidence or been able to justify the time limits that I am proposing, but I would submit to the committee and I would put to the Government that they also have not come forward with evidence as to why those time limits are necessary. Indeed, many in the profession insist that this amount of time is not needed either by the crown or by the defence, but the impact on the system of those time limits is very significant. Indeed, in a large part, it has resulted in some of the many problems that the committee has discussed on many occasions. As I say, there are probing amendments. I may come back to this issue at a later stage, but at this stage I would be asking for the Scottish Government to come forward with justification as to why those specific lengths of time extensions have been sought and are in place and to why they should be continued. My other amendment is a reporting amendment, and it is similar to the previous amendment that I spoke to earlier this morning. However, this reporting amendment relates to the issue of remand. As I have said, we already have the highest remand figures in the whole of Europe. I will not rehearse all the arguments that have previously been heard, but this amendment calls on the Scottish ministers to come forward as soon as it is practicable at the end of its reporting period, which is every six months, with a report to the Scottish Parliament setting out the numbers of prisoners held on remand, the average length of time prisoners are being held on remand pre-trial and information about disposals. That is whether people received a custodial sentence or were found not guilty. That requirement would be in place for the length of time that this legislation would be in place, which would be to 31 January 2023. We have already discussed, in relation to other issues, in relation to virtual trials, the significance of information in relation to the scrutiny process, and for Parliament to effectively scrutinise what are very serious issues, which, as I say, have significant human rights concerns, not just for the accused, but for all involved in the process, including the victim, the more information that can be provided and shared to this Parliament, the better. The enacting on the face of a bill of such a requirement would send a very strong message to the civil service and to the justice system of the level of scrutiny that the Parliament expects in relation to those types of decisions. Brian Whittle, to move amendment 1001 and other amendments in the group. My amendments relate specifically to issues where the accused is accused of a sexual offence, and the alleged victim of sexual crimes and their journey through the judicial system. That, for me, goes back a number of years. I have been working with several constituents who have had this issue. In the last term in the health and sport committee, through the redress bill and the forensic medicine bill, we took an awful lot of evidence from victims of those crimes, and it is not an overstatement to say that the journey through the judicial system for victims is extremely arduous and it is very, very poor. What Covid has done is exacerbated this exponentially, with their cases being put back time and time again. The stress and the impact on the mental health of those victims is enormous. It is very hard to witness. I have one constituent who has had her trial of her accused put back five times and now does not feel able to continue before that trial has been squashed. We are talking here about a crime that is already very low in the reporting and even lower in the conviction rates. The current system does little to encourage and support victims to come forward. In fact, I think that it does exactly the opposite. Many of the accused are now using the Covid emergency to their advantage and to the detriment of the victim. We have discussed this often in Parliament over the past few years through the redress bill, the forensic medicine bill and bringing other issues to court. I have even taken a meeting with the Lord Advocate and I think that there is an acceptance across the board, across the chamber, that there is a significant issue here that has yet to be addressed. But today there has been no movement on this issue, as I said, although there is such an acceptance across the chamber. I would ask that the committee consider those amendments in a way that what we are trying to do here is indicate to the court that the specific crimes, the stress that is related to the victims of those specific crimes and the mental health, they can only be extended under exceptional circumstances that would justify such an extension. We cannot allow the judicial system to have the accused to use them to their benefit. In those circumstances, I am looking for the committee to give a level of protection to the victims here and I would hope that he would accept those. Pauline McNeill, to speak to amendment 1041 and of amendments in the group. Thank you very much, convener, and thanks to Katie Carter and to Brian Whittle for the amendments and the debates so far. I think that there is a really important grouping because I think what we are being asked to do here is to agree to quite far-reaching time limits for all cases and it will have a significant impact not just on victims but on accused persons. There were significant delays to court trials prior to Covid. The delays were quite extraordinary long. I am aware that judges were quite liberally granting extensions on costs shown for virtually any reason—any reason at all—no court grant and an extension. I was already concerned—in fact, I did have a discussion with the cabinet secretary at some point about this—that Scotland, having been quite proud of the time limits that it once had, reduced them for good reason to 140 and 110 days for high court trials. And now, we are being asked to extend these to maximum 320 days until 2025. Now, I ask members to think about this. That is a barrier for every single case. It was open to the Crown and the Government to argue that, since the judges have been liberal on extending time limits up until now in this system, that it could have been in a case-by-case basis. There is no reason for that. That is an alternative to this. If any member is thinking, oh well, we do have a backlog and I think that that is justified, and I am going to get to that point. The alternative is to say that if there is a reason that the trial cannot proceed, then they put the arguments before the court on a case-by-case basis. But the Government has chosen not to do that. They have chosen to do that. As Katie Clark said, these time limits will be used. When you make no mistake, people work to deadlines and they will be used. It was a point made to us by the legal profession and you might say for good reason the Crown will not disclose what priority they will give to cases. I am sympathetic to that because I understand that there are so many variables here. Is the court available? Is the evidence available? Are the witnesses available? You could be sitting as an accused person in Berlinigale and not know if your case is going to get called next week or in 320 days. I do not think that it is acceptable for victims either, as Brian Whittle has spoken to. In fact, we already know that some victims of sexual crimes have said that they will be inclined to proceed with their cases because of significant delays. That is something that the Government has to take into account here. I am going to speak to the specific amendments that I have about why I have chosen these timescales, but I just want to contribute to the general debate. On the question of remanned prisoners, as we have discussed many times, Scotland has the worst remanned figures in Europe. They are utterly horrendous. In questioning the Scottish Prison Service, which I accept has done a very good job and a very difficult job, some remanned prisoners double up on themselves. It is not as if we can say that we have, and I did check this with the chief of the prison service and she said that. There are issues around the prison estate and the health of prisoners. That gives me a cause for concern, too, that that could mean that, if those are used up to 2025, I know that the cabinet secretary is going to come back and say, well, we do need some slack in the system and accept that, but I do not accept that we need these particular time limits. I will deal with amendment 1042 in the first instance. This is in relation to amends the time limits on remanned service of the indictment from 260 days to 110 days in solemn cases. Previously, there were 80 days before the coronavirus. This is the one amendment that I think is worthy of consideration by the Government. The preparation of a case, why would it require 260 days? You may say, well, that does not have to put to the crown fair enough, but I am questioning this. Why does a crown need 260 days from 80 days to prepare a case? Everything is going to flow from the indictment, so if they use the 260 days, then the other pre-trial, preliminary trial and the trial itself will obviously be much later down that road, down that line. I have suggested an extra 30 days, like Katie Clackett's arbitrary, so I am acknowledging that some extra time is needed. I do not accept that this is required to make the system work. In 143 amends the time limits on remanned until the pre-trial hearing from 29 days. In those ones, I have used the arbitrary figure of an extra 60 days. I should also speak to the 1041, which is a law society amendment, which is an amendment that says that there should be no extension. I just thought that, for completeness, we should put that in the group for discussion, but I really favour having some time limits, but not the ones that are suggested in the bill. Amendment 144 amends the time limit on remanned until the high court days from 320 to reduce that to 200 days. That was previously 140 days. Amendment 1045 amends the time limits on remanned until the pre-trial hearing from 290 days to 170 days. Prior to the pandemic, that was 110 days. Amendment 1046 amends the time limit on remanned until trial from 320 days to 200 days in solemn cases. That was previously 140 days. I think that that is a significant extra time. I am sympathetic to Brian Whittle's amendment. It is a commentary on that. The member is quite correct. We have not made a lot of progress in reducing time delays for those involved in sexual offences and crimes. It has a disproportionate effect on women and children, but I was not clear what the amendment meant in terms of sexual offences. Is that the full range of sexual offences in solemn procedure? I would add that I am sympathetic because of the disproportionate effect on women and children, but it has to also be said that victims of all crimes in solemn could be very serious assaults to the severe injury of someone's face or body. It is also very stressful for those victims, too. Lastly, there will be practical issues. There will obviously be practical issues around quote availability, but also availability of the defence. I mean, I have had some discussions with the faculty of advocates about this and they are concerned that they are losing good people from the bar and that they are not being replaced. That was probably already having an impact on the availability of councils to proceed with a trial. I mean, some of those, I think, are fixable. I know that it is annoying going to debate with the Government about fees and about investing in the defence as well as investing in the prosecution. It is much more lucrative to go for our job at the Crown Office now because it pays more, less lucrative at the moment to stay in the defence profession. Those are fixable problems. All in all, I do not think that it is a satisfactory situation for the Parliament to agree huge extended time limits with no commitment on how some things could be fixed, with no explanation as to why the Crown needs so long to prepare a case, with no real progress in the condition of prisoners on remand and no real commitment to how the transparency of cases will be dealt with in what is a very lengthy process. Jamie Greene, to speak to amendment 1022 and other amendments in the group. Thank you, convener. I thank members for their contribution thus far. Just a couple of short comments to make. I think that there are probably things that we cannot agree on. Actually, I think that all these amendments are very well intended, my own included. The first point is that nobody wants cases to time out. That is not a scenario that any Government wishes to be in. I think that that has therefore necessitated the need for extensions as unwelcome as they are to everyone in the system. It remains a fact that there was a considerable backlog of cases before the pandemic, and it is entirely true that the pandemic has added to those pressures in the courts and all partners within that process. Equally, we would, I hope, agree that nobody wants what are temporary extensions to become the new norm. Some of the concerns that we are hearing today is that there is a bit of mission creep here in that what are statutory maximum periods have been extended will continue to be extended for a substantial period of time for a couple of years for the wrong reason. I think that the right reason is to ensure that cases do not time out due to the circumstances that we find themselves in. The wrong reason to simply extend and extend for prolonged periods of time would be because there is a backlog, because that is an issue of resource, that is an issue of capacity and capability within the court system, not one of whether it is right to extend criminal procedure time limits in such a way. In the R-lengthy, I do have concerns that 320 days is a substantial period of time. I am hoping that we can agree that those are temporary measures and will drop back. I think that the argument that we made is that the best way to do it is to do it this way. To do it the other way, where the default is on a case-by-case basis, as Pauline McNeill alludes to, would undoubtedly lead to a huge volume of traffic in the system, where the courts and those involved in that process would seek to extend them on a case-by-case basis in the thousands or even tens of thousands in volume. This is all about my amendment, convener. That is the reason why there is concern. Because of that concern, I think that, as best illustrated by Brian Whittle, the human nature, the human interest in all this, the victims themselves and the types of cases that he specifically refers to, is why I think that it is important not just for that reason, not just for the reason that Pauline McNeill and Katie Clark has elisted around the human rights elements of it and the remand numbers and prison numbers and all the problems associated with that, that the Government should consider whether all of those provisions in time limits remain necessary. The way to do that is via amendment 1022, which puts in a duty to review on extension of this chapter. In other words, the Scottish ministers must undertake a review at the end of each reporting period on the operation of the provisions in this chapter, this chapter being criminal procedure time limits and their extensions, and must consider whether the provisions in this chapter remain necessary. It is that one line that is important. I have specifically asked that that happens on a three-monthly basis. The argument could be made that that is onerous, but I would point to the original coronavirus legislation that we passed, which put a statutory duty on the Government to review every two months, and it became quite normal practice for the Government to do so. I do not think that three months is an unreasonable time scale at all. I will take an intervention only if it is time. It was a very specific point on the argument that you were making in relation to timing out. One of the concerns that occurred to me in relation to amendment 1001 in relation to sexual offences and the exceptional circumstances would be the risk of timing out, and it might have unintended consequences. If that was something that you would give them thought to, it might be something that the Cabinet Secretary could come back on. What would the impact be? Would it be the impact that is described, or could it have unintended consequences? It is not for me to speak to other members' amendments, but even if that is the case, and it is an unintended consequence of the wording that was proposed by Mr Whittle, I am sure that that is not the intention. I am sure that the intention is to simply raise awareness of the fact that victims of such crimes are suffering. As I said, those extensions affect both parties, and they affect the accused, often those who are held remand and the victims who are waiting a year. It is shocking that victims are pulling out of prosecution or continuing cases because of those timescales. They should never be in that position. I think that we all should work together to stop that happening. Essentially, what I am asking is that those extensions, for all the reasons, depending on what side of the argument you are on, feel are unnecessary or illegal or morally unjustified. Whatever your view on that, the Government has a duty to consider where they remain necessary on a three-monthly basis for so long as they are in place, and I hope that we have a view to reducing them back to the statutory norms that we were used to before the pandemic. Thank you, convener. I should say that it is a very large group of 26 amendments. I have gone through my speaking, not taking it as much as I can, but they will expect that the Government is going to have to make the position known to committee members, so please bear with me. A couple of general points, just to acknowledge the points that were made about remand. Earlier on, that is why we have consulted on remand, and I hope that we will get the support of all members and all parties for actions that we intend to take to try to reduce the numbers on remand. A number of the amendments that are here—I am sure that all of them are well-intentioned and some will be able to try and help others perhaps less so. If I can say that I am sympathetic to finding ways of ensuring cases can proceed more quickly, and to come back to, first of all, Jamie Greene's point, I suppose that the issue really is that we believe that these are necessary to reduce the backlog. The question is whether, if it is not having that effect and the backlog continues and then they get extended, I think that somebody said they become the new normal. That is not my intention. I think that we should revert back to where we were before, as Pauline McNeill said, one of the leading jurisdictions in the world in terms of the time that we had. I think that that is where we should be. I think that we all have a duty and have mentioned what the Government does with the committee to make sure that we are pushing that backlog down in order that we can revert back to normal. My view is to repeat that the normal that we want to get to is not this, it is where we were previously, albeit learning some lessons along the way. A general point to Brian Whittle's point, I concede that the justice system can be a brutal experience for many people, whether it is sexual crimes or other crimes as well. We have mentioned that in the justice vision and are looking to see ways in which we can improve that situation. One other example that I would give is the case of a man who went to court to hear the trial for somebody convicted, sorry, somebody accused of murdering his son and had to sit just a few feet away from the person accused of the murder. So there are so many ways in which of course the system can inadvertently re-traumatise people and we are trying to deal with that. However, the reasons I explained when giving evidence to the committee, I cannot support attempts to either remove or reduce extended time limits where such action would significantly adversely affect time and resources for progressing trials. Progressing trials, in my view, is the absolute number one priority, not least for the points made by Jamie Greene that affects everybody involved in the process. As members are aware, the necessary restrictions on court business were put in place in March 2020 in response to the coronavirus pandemic and they have resulted in a large backlog of cases building up in the system. There was a backlog there before, it is more than doubled in the interim. It is important, in my view, that the committee keep in mind that the time limit extension provisions are intended to assist the justice system in managing the backlog of cases that is built up during the pandemic. They are not the cause of the backlog. It is a really important point, given some of the comments that should be made. Removing or reducing the length of the time limit extension provisions will not create any additional court capacity. It will not result in cases being heard more quickly. It is very important that that point is made. The cabinet secretary makes progress. I am conscious that some of the interventions last time were covered in my subsequent remarks, so if I can maybe get through those first of all and sub to yourself, of course, convener, if the interventions are taken. The purpose of the extension to the time limits is in large part to ensure that scarce prosecutorial court and defence resources are not diverted to having to prepare and adjudicate on large numbers of applications to extend the statutory time limits on a case-by-case basis. That was a whole rational rationale in the first place. If we did that, that would reduce the capacity of the system to progress court cases, and it would actually result in additional time for cases to come to court than otherwise would be the case. We continue to support justice agencies to take action to address the court backlog caused by the pandemic. A justice recovery fund of £53.2 million has been established to aid recovery, and we have extended funding for remote jury centres for additional three months to ensure capacity is maintained as the court service transitions back to juries in court. However, justice agencies have made clear that it will take several years to bring timescales for the overall case load back to pre-corovat coronavirus levels. In that light, it would be entirely counterproductive to amendable to either reduce the length of any time limit extension or remove it entirely if it impacts on the number one priority of throughput of cases. It is not just me who is saying that, and I think that Katie Clarke leaves this point. The committee will recall that Kate Wallace of Victim Support Scotland gave evidence in the second of March. She expressed concerns that if the time limits were not extended, cases would time out, denying justice to victims. This is what Kate Wallace said. If the time limits were not extended until the system had recovered when we got things back under control, I would be concerned that cases would end up timing out. That is the very opposite of what we want. Victims are very concerned that they will not see justice done. For that reason, I would ask Ms Clarke and Ms McNeill not to move their amendments. However, amendments 1047 and 1048 from Paul McNeill seek to divert back to two specific changes made the time limits relating to adjournments in cases that arise post-conviction. Neither of those areas, pre-sentence reports and breach hearings, affect the trial process and so distinct from the other time limit changes. On that basis, those amendments will mean that the court can still adjourn the case again if needed and has the original time limit supplied only to the length of a single adjournment, and the particular time limits do not impact on the throughput of trials. For that reason, the Scottish Government will support amendments 1047 and 1048. They are proportionate amendments that go a small way for the courts to divert back to pre-coronavirus time limits, which is something that we all support, but not at the expense of the throughput of criminal cases. Amendments 101 and 102 in the name of Brian Whittle and amendment 1056 in the name of Paul McNeill seek to elevate the threshold of the test used by the court in assessing whether to extend the time limit. That is not an area that has been changed by any of the coronavirus legislation convener, and those amendments would represent completely new policy, which has not been considered by this committee or by anyone else. I would be concerned with the— I ask for an intervention on this point. Apologies, Cabinet Secretary. I didn't actually address this, but would you not share my concern that, supposing Parliament agrees to the time limits, then the court can still use the 95 act on costs shown to extend them further? That is why I laid this amendment. So that the test is higher, would the Government not even consider what would happen if we found that cases were being extended beyond the 300? It caused shawns a very low test. I have made the point that, if we are to have a change like that, I think that it deserves to be considered on its own merits and the work that you have done beforehand. I am not saying that it is not a valid point raised by Paul McNeill, but I think that it would have to be considered on its own merits by the committee and by the Government. I would also be concerned with the unintended consequences of agreeing a new policy for such a sensitive area of criminal procedure. Unfortunately, the backlog of cases that is built as a result of the pandemic, of course, means that cases are taking longer to reach court, and I recognise that that has got a particular impact on complainers, witnesses and accused people awaiting trial, especially in sexual offence cases, and that these amendments are intended to try to address the problem. Those issues and effects of the pandemic are not unique to the Scottish judicial system, but I am concerned that amendments 1001 and 1002 could have consequences that I think Mr Whittle does not intend. The test of exceptional circumstances is in fact a much higher bar than the existing test, of course, has shown. It has to be assumed that such a new test would create a presumption that applications to extend the statutory time limit—that is where they are made by the prosecution of the defence—would ordinarily be refused, that it is only in exceptional circumstances that they will be granted. When a judge refuses an application for extension of a statutory time limit, there are two possible outcomes. Either the case will proceed to trial as it is, assuming that the trial date has been fixed, or the case will fall. I am often covering stuff that is often so happy to come back, if I am glad at the end of my contribution. It is important to consider what the consequences of that will be, remembering that it is, of course, the most serious sexual offence cases that are tried in High Court, including all charges of rape. If the application for extension is made by the Crown Office because the case is not yet ready for trial and that application is refused, then it may well be that they would have no choice but to decide that the evidence required to prove the case, beyond reason or doubt, simply is not in place, and so the trial would have to be abandoned. As Kate Wallace said, this risk, leaving complainers feeling that justice is not being done, it also means that people accused of the most serious crimes could escape justice and that they may offend again. If, on the other hand, the application has been made by a defence, then it is perhaps more likely that the trial will proceed if the application is refused. However, if that application to extend the time limits had been made, for example, to secure more time to identify key witnesses, then there is a risk that proceeding with the trial will increase the risk of a miscarriage of justice. Whatever the position is as regards which party in the proceedings requests an extension, it is clear that the interests of justice may not be served with a much higher threshold of the time limit test that the amendment provides. I would invite for those reasons Mr Whittle not to move the amendments 1001 and 1002. Turning to amendment 1056, I am afraid that the same concerns arise as for the two previous amendments that I mentioned. It is worth noting that amendment 1056 is wider in scope than the other two, and it would allow the courts to extend the statutory time limits at section 65 in any case tried on indictment, either in the sheriff court or the high court, for only exceptional circumstances, so it is not limited to sexual offence cases. For reasons of the potentially severe unintended consequences as I outlined in response to Mr Whittle's amendments, so I would invite Paul McNeill not to move amendment 1056. Turning to amendment 1021, this would require the Scottish Government to report to Parliament every six months on statistical matters relating to the remand population. These are the size of the remand population, the average length of time prisoners are being held on pretrial remand and the number of prisoners given a custodial or non-custodial sentence or found not guilty who were held on remand prior to trial. Convenant, I can see the merit in reporting on the remand population given the concerns about the length of time some prisoners have been held on remand prior to trial. However, I do not think that the amendment works as it is not clear exactly what the duty is that falls on Scottish ministers to report on the size of the remand population and the average length of time spent by prisoners actually is. It could be a snapshot at the end of the reporting period or it could be a rolling average. The amendment is not clear in that point. Equally, I am not persuaded that information on the disposals given in cases where the accused was held on remand prior to trial is necessarily a useful piece of information. Accused people can be held on remand for a variety of reasons, not necessarily related to the seriousness of the offence that they have been charged with. For example, they may have breached their bail conditions or there may be a concern that they will not turn up the court if they are released on bail. I also understand that current IT systems used by the Scottish Courts and Tribunal Service are not set up in a way that would enable this information to be obtained. I would ask Ms Clark not to move amendment 1021, but I am happy to seek to work with Ms Clark to see if an amendment to address those issues can be developed in the short time ahead of stage 3. I am turning to amendment 1022. That would require the Government to provide a quarterly review of the necessity of continuation of extended time limits to the Scottish Parliament. A section 42 of the bill lays out if the Scottish Government wished for the extended time limits or, indeed, any of the temporary justice measures to remain in force beyond the 30th of November 2023. The statutory instrument providing for that must include a statement of reasons why. The interest and scrutiny role of the Parliament is protected for extensions beyond the initial period provided for in the bill itself, the 23th of November 2023. Amendment 1030, which I will discuss in a later group, may have relevance in this area as well. I have tried to make clear that extended time limits, in my view, are a necessary measure, which other jurisdictions have also had to resort to, while the criminal court system recovers from the backlog created by the pandemic. When I was moving the amendments, I was speaking on crown and defence capacity in relation to time limits. From what the cabinet secretary is saying, is it primarily court capacity that is the main driver as to why you believe that the time limits need to be extended? No, the time limits need to be expanded for the entire system to be able to cope with that. However, I think that I was mentioning the court service in relation to the information that you are seeking to obtain the constraints that they have got on getting that information. However, generally the time limits, in my view, are justified by the strain on the entire system. If I can turn to—I would just say that, of course, I don't want the extended time limits to be in place any longer, excuse me, they are necessary, but I am not convinced that the specific amendment, which I mentioned previously, meaningfully adds to the reporting requirements that are already contained in the bill. Along with the need to justify to Parliament any continuation of extended limits beyond the 13th of November next year, it is always, of course, open to any MSP to ask parliamentary questions to obtain information about any aspect of the operation of the justice system that may influence any decision to extend or expire these provisions. For that reason, I would ask Mr Greene not to move amendment 1022, just to go back to the point about remand. The prison service, although the law will say that the number on a given day will be able to provide that information to the committee, I am sure that the committee has asked for it. Amendment 10271028 said to provide the extended statutory time limits at sections 653, 1471 and 200 of the 1995 act, which relate to those cases where the accused has been held on a man prior to trial or sentencing, will automatically expire one year after royal assent. In contrast with the other temporary justice measures, those time limits could not be extended by statutory instruments. Convener, we simply do not know what the situation will be with the backlog of cases in the summer of 2023, but if amendments 10271028 are passed, the effect would be to expire the time limit extensions relating to remand cases, regardless of what the scale of the backlog of cases is at that point. As I said, the removing of the extended time limit provisions before the backlog, created by the pandemic, has been reduced sufficiently. It could actually be to increase the length of time that accused people spend on remand prior to trial. For that reason, I would ask KT Clarke-Mutt to move amendments 10271028. Finally, convener, turning to amendments 1004 in my name, that makes transitional and saving provision in relation to the time limit extension provisions contained in the act, the 2020 act. The bill very slightly changes the length of certain extensions to time limits, as it expresses a number of days rather than a number of months, as was provided for in the 2020 act. That has been done to make the provisions easier to understand. Amendment 1004 therefore makes transitional provision to avoid a single case having two different time limit regimes applying at different points in the criminal process. I think that you missed a huge point here, as Pauline McNeill alluded to. If you go into a court and watch court proceedings, it is normal for a defence lawyer to walk into court and say, I need some more time to prepare my case for my client. During Covid, what has happened is that they are now doing that multiple times, and they are allowed to do that multiple times. All I am asking in my amendment here is to indicate to the court that the bar for extending that period of time has to be higher than that, because if it is, what that does is reduce the backlog that we so want to reduce. If we keep extending the way that they are allowed to do just now, that backlog will not reduce. What will happen, as I have indicated before, is that victims of the crimes are dropping out of their case because of the stress and the mental health issues. That is not about trying to reduce the capability of lawyers to defend or prosecute. That is about making sure that, if an extension is required, it has to have a reason. It is not just granted as a matter, of course. Any other members wish to come in? Katie Clark, to wind up and press or withdraw your amendment. I was very interested in what the cabinet secretary said in relation to the justifications for the time limits that are being sought. It would be fair to say that I am more sympathetic to the problems that exist in terms of the court estate. I perhaps will write to the cabinet secretary in relation to that to try and seek some more information as to where the pressures are, and I appreciate the difficulty in addressing some of those issues in a speedy way. However, it has to be said that the time limits that are being sought by the Scottish Government are extensive. We would want further justification as to why they are required, but I would not be moving any of those amendments today. As I said, they were probing amendments. I am grateful to the cabinet secretary's comments in relation to amendment 1021, and that is perhaps an issue that we can come back to later. I will not be moving that amendment on this occasion. Just to confirm that you are not willing to withdraw amendment 1011. Is the committee content for the amendment to be withdrawn? I call amendment 1012, in the name of Katie Clark, already debated with amendment 1011. Katie Clark, to move or not move? Not move. Thank you. The question is that amendment 1012 be a… It's not moving. It's not moving. Oh, I beg your pardon. I beg your pardon. I'm not listening. It's not moving. Okay. So it's not moving. Rushing. I call amendment 1013, in the name of Katie Clark, already debated with amendment 1011. Katie Clark, to move or not move? Not move. Thank you. I call amendment 10101, in the name of Brian Whittle, already debated with amendment 1011. Brian Whittle, to move or not move? Move. Thank you. So the question is that amendment 1001 be agreed to, or are we all agreed? Yes. We're not agreed, therefore we'll move to a vote. All those in favour of the amendment raise your hand. Thank you. All those against raise your hand. All those abstaining raise your hand. Thank you. Thank you. So the result of the vote is that there were two votes for the amendment, four votes against the amendment, two abstentions, therefore the amendment is not agreed. I call amendment 1014, in the name of Katie Clark, already debated with amendment 1011. Katie Clark, to move or not move? Not move. I call amendment 1041, in the name of Pauline McNeill, already debated with amendment 1011. I remind members that if amendment 1041 is agreed to, I cannot call amendments 1015, 1042, 1016, 1043, 1017, 1044, 1018, 1045, 1019 and 1046, due to preemption. So Pauline McNeill, to move or not move? Not moved. I call amendment 1015, in the name of Katie Clark, already debated with amendment 1011. Katie Clark, to move or not move? I call amendment 1042, in the name of Pauline McNeill, already debated with amendment 1011. Thank you. I call amendment 1016, in the name of Katie Clark, already debated with amendment 1011. Katie Clark, to move or not move? Not move. I call amendment 1043, in the name of Pauline McNeill, already debated with amendment 1011. Pauline McNeill, to move or not move? Not moved. I call amendment 1017, in the name of Katie Clark, already debated with amendment 1011. Katie Clark, to move or not move? Not move. I call amendment 1044, in the name of Pauline McNeill, already debated with amendment 1011. Pauline McNeill, to move or not move? Not moved. I call amendment 1018, in the name of Katie Clark, already debated with amendment 1011. Katie Clark, to move or not move? Not move. I call amendment 1045, in the name of Pauline McNeill, already debated with amendment 1011. Pauline McNeill, to move or not move? Not moved. I call amendment 1019, in the name of Katie Clark, already debated with amendment 1011. Katie Clark to move or not move? I call amendment 1046, in the name of Pauline McNeill, already debated with amendment 1011. Pauline McNeill to move or not move? I call amendment 1020, in the name of Katie Clark, already debated with amendment 1011. Katie Clark to move or not move? I call amendment 1021, in the name of Katie Clark, already debated with amendment 1011. Katie Clark to move or not move? I call amendment 1022, in the name of Jamie Greene, already debated with amendment 1011. Jamie Greene to move or not move? I call amendment 1047, in the name of Pauline McNeill, already debated with amendment 1011. Pauline McNeill to move or not move? I hope I didn't miss here that you were supporting this. I will move it. The question is that amendment 1047 be agreed to. Are we all agreed? Yes. I call amendment 1048, in the name of Pauline McNeill, already debated with amendment 1011. Pauline McNeill to move or not move? I call amendment 1049, in the name of Russell Finlay, grouped with amendments as shown in the groupings. I remind members that, if amendment 1049 is agreed to, I cannot call amendments 1023, 1050, 1051, 1052, 1053, 1054, 1055 due to a preemption. Russell Finlay to move amendment 1049 and speak to all amendments in the groupings. All eight of those amendments relate to the emergency release of prisoners in the event of another Covid outbreak. I will try to do those in a sensible order. The first one is a stand-alone one, and it is 1050. It relates to the requirement, as the amendment seeks for any prisoner who may be subject to early release in the future due to Covid, should undergo a Covid test. It came as a surprise to me that that had not been the case, although it was explained understandably that the mechanisms were not in place at that time, I think, in any future pandemic they should be. It seems to defy any kind of public health logic to send people from a central institution into communities potentially across Scotland. On amendments 1049 and 1057, what we know is that due to these emergency measures, 348 prisoners were released early at the start of the pandemic. This was a decision taken by Scottish ministers, including 21 prisoners convicted of serious assault. There is a fundamental point of principle at play here. We are opposed to the general ability of ministers to intervene in sentences that have been handed out by sheriffs or judges. I believe that sentences should be a matter for the judiciary, not politicians. The earlier release of prisoners at the stroke of a ministerial pen is wrong in principle. There is also the issue of re-offending. The earlier release was presented as being a matter of public health, but I would argue that it took a gamble with public safety. We discovered that 142 of those who were released early under the emergency powers re-offended within six months. The usual yard stick for measure re-offending is within 12 months, so the actual number who re-offended was almost certainly higher. The Scottish Government may say that this is about protecting people in prison, but those people are in prison for good reason, primarily as punishment to protect the public and to rehabilitate. I would argue that the Scottish Government ought to fix the prison state and drainage and ensure that the environment is safe and has the capacity to deal with any future outbreak and not give the possible impression that Covid is being used as a pretext to get prisoners' numbers down by stealth. A few weeks ago, the Scottish Government revealed that hundreds of prisoners had been given early or temporary release due to incorrect risk assessments caused by a computer problem. Those included eight prisoners serving life, so public faith has already taken a bit of a knock, I would suggest. It is also worth stating that those emergency powers are not in the hands of criminal justice professionals such as prison governors who have the experience to make the decisions that its Government ministers have. If it was Governors and not the Government, that might be a different matter. However, the strongest opposition to those powers is about the impact on victims. The committee took evidence from victims organisations who were scaring about early release. Earlier on, the cabinet secretary quoted Kate Wallace of Victim Support Scotland. Can I ask whether it is the member's position that he thinks he said that he was opposed to the ability of ministers to intervene in sentencing in relation to release? Is that only Scottish ministers or does he object to the same power being used by UK ministers? I think that I will stick to what is relevant to what powers we have in this Parliament and I as a member have to discuss. We are here to discuss the very specific issues of those amendments. Kate Wallace, who the cabinet secretary quoted earlier, said that the impact of those early releases was far greater than the 348 cases because, I quote, the victims did not know who was going to be released. Her organisation and others saw what they called a massive upsurge in calls from victims who she described as being petrified. They struggled to cope with the volume of calls that they received. She was also critical about the lack of information sharing or support for victims who she described as traumatised by the thought of the perpetrators in their case being released from prison early, adding that there was no regard whatsoever paid to that. She was understandably therefore clear that we do not agree with decreasing the length of time served. Marsha Scott of Scottish Women's Aid shared some of those concerns and more generally made a point that sheriffs seem to be getting pushed into alleviating pressures on the system rather than considering victims' rights. Moving on to the other amendments, numbers 1, 0, 5, 1, 5, 2, 5, 3, 5, 4 and 5, 5—if there is not an agreement that ministers should—sorry, I'll reword that—if it's the case that ministers retain the powers to have released prisoners as they do just now, then those amendments would seek to ensure that certain categories of prisoners would be exempt from such release. As my understanding, the Scottish Government have said that none of the 348 released early were convicted of domestic crimes. However, the legislation does not exempt such prisoners from any future early release and indeed the other amendments that I quote would ensure that other types of prisoners were not able to be released under this power. Those include those convicted on indictment, those convicted of crimes of violence, those convicted of sexual crimes and, as I already stated, those convicted of domestic crimes. We would rather, for all the reasons already laid out, that the ministers did not have those powers full stop. However, if they do, it seems therefore sensible and proper that prisoners who are convicted of those crimes should be exempt, and that's what our amendments seek to do. I'm hopeful that the cabinet secretary would at least give that some consideration. If he does not, I sincerely hope that other committee members would vote for those amendments, not least given the strength of evidence that we've heard from the victims' organisations. Thank you. Jamie Greene to speak to amendment 1023 and other amendments in the group. Thank you, convener. This will be a record-breaking short speech from me on this group. This amendment, as proposed by me, will ensure that a prisoner may not be released earlier, sorry, more than six months before their scheduled release date. It's a one-line amendment, it's fairly self-explanatory, and the rationale for that, I think, will become quite obvious to most. Any more than six months before scheduled release runs the very real risk of rendering the sentence meaningless, in my view, and for all the reasons eloquently expressed by my colleague on his amendments, it feels intrinsically unfair and unjustifiable in the context, and for that reason I will be pushing this amendment. Thank you very much. Any other members like to come in? Thanks, convener. The committee, as you know, considered the emergency prison release to power during stage 1, and it's clear that some stakeholders support this power, and not in particular that the chief executive of the Scottish Prison Service. Threes are met, her stated, that the use of the power in May 2020 enabled the prison service to manage the risk of infection and the spread of infection in prisons at that time by increasing the single cell occupancy rate. It's also clear that some others had concerns, including around the provision of information to victims. Certainly, if we were ever to use this power again, and I would stress that there are no current plans to do so, and I would stress that there are no plans that I'm aware of to do so in general, I stress that we would want to learn from the experience in May 2020 and ensure that the improvements to the process were put in place, and that would include improved communication with victims. Ensuring the security and good order of our prisons and the health and safety of prisoners and prison staff is absolutely critical, and it's a responsibility I and the prison service take very seriously. The emergency prisoner release power, which I would remind the committee that the Scottish Government has only used one since it was introduced under the Coronavirus Act 2020, is intended to support that essential principle by providing a means to release groups of prisoners if the impact that coronavirus is having or is likely to have puts the security of prisons or the safety of prisoners or prison staff at risk. As I've already said, the Scottish Government has no current plans to use this power again, but we have all seen how unpredictable coronavirus and its variants can be, and the significant impact that coronavirus outbreaks have on the prison regime. Retaining those provisions allows action to be taken immediately, which could save lives and allow the continued safe operation of our prisons, and that's what we're talking about, saving lives and looking after the health of the individuals involved. Unlike the UK Government, the Scottish ministers currently have no legal power to instruct early release to protect the safe operation of prisons for any other reason. I'm grateful to Mr Affinley for his clarification that he's talking only about Scottish ministers. We'll leave open the question of why it's a power that can be easily exercised without objection by UK ministers, but not by Scottish ministers. My responsibility is to look after the Scottish Prison Service, and that's why we're seeking those powers. Without those provisions, Without those provisions, we would be required to introduce emergency legislation if the impact of coronavirus places the security of prisons at risk. Even emergency legislation would take time, and it would be time that we could not afford given the experience of the pandemic. For those reasons, I can't support amendments 1049, 1057, which would remove the ability for Scottish ministers to release groups of prisoners in response to the impact that coronavirus is having, or is likely to have on the security and good order of prisons and the health and safety of prisoners and staff. I would therefore invite Russell Affinley not to move those amendments. Turning now to amendment 1023, in the name of Jamie Greene, this amendment seeks to limit the application of the prisoner air release power so that prisoners cannot be released any earlier than six months prior to their scheduled release date. I'm happy to support the principle of the amendment. Indeed, I would highlight that the regulations that allowed the use of this power in May 2020 restricted release to individuals within 90 days of their scheduled release date. However, there are some significant problems of the way that it's drafted. For that reason, I can't support it today, but I would like to, if he's willing to work with Jamie Greene to bring amendments forward at stage 3 that will achieve what I think is intended. I therefore invite Jamie Greene not to move that amendment 1023. Turning to amendment 1051, in the name of Russell Affinley, this amendment would prevent individuals who have tested positive for coronavirus from being released under the emergency release mechanism. I know that this is an issue that Mr Affinley raised during stage 1. However, it should be noted that testing is not mandatory in the community, and I am of the view that we should not make it mandatory as a condition of release. SPS worked very hard during the pandemic to ensure that the Covid-related restrictions placed on prisoners were proportionate, and as far as possible—in fact, I think that it was mentioned by a number of members of this committee to that effect as well—that the conditions there reflected as far as possible the restrictions placed on the wider community. That was certainly the view of the inspector of prisons, as I recall. That helped to protect the good order of prisons and the health and wellbeing of prisoners and prison staff. I assume that the intention behind the amendment is to protect public health, and that is an intention that, of course, I would support. However, the general public are not required to undertake Covid testing for the purposes of protecting public health, so it is not proportionate to require prisoners to do so. If it were the case that a prisoner was to have tested positive or in the absence of a test was in the reasonable belief of the prison service to nevertheless be infectious with Covid, the release power would be used to delay their release until they cease to be infectious. That is the approach that was taken in 2020, and that is the approach that we would intend to take in the future. Also, as currently drafted, the amendment could prevent any prisoner who has ever tested positive for coronavirus being released under this power. I am not sure that that is the effect that Mr Finlay was intending. For those reasons, I do not support amendment 105A, and I would invite Mr Finlay not to move that amendment. The remaining amendments in the group, all in the name of Russell Finlay, would exclude various categories of prisoners from emergency release by regulations. I cannot support any of those today, because they all suffer from the same drafting error. That is that they would have the effect of preventing someone from being released on an emergency if, at any point in their lives, they had been convicted of an offence or one of the kinds of offences his amendments mentioned, even if the conviction was spent decades ago. That would be a completely unreasonable position to take, and it may even be an unlawful position to take. I do not think that that is what Mr Finlay intended. I assume that he only means to stop the release of those serving sentences for the offences that his amendments mention. However, I would be pleased to work with Mr Finlay to produce, for stage 3, properly drafted versions of his amendments 1052 and 1053, which would exclude from the emergency release mechanism anyone serving a sentence for a domestic abuse offence. Indeed, I would like to go further and also exclude anyone convicted of an offence aggravated by domestic abuse. That is exactly what we did in the one set of regulations made under the power in the emergency act. I would ask Mr Finlay not to press amendments 1052 and 1053 today, so we can work to bring them back in better shape at stage 3. In relation to amendments 1051, 1054 and 1055, I cannot support those at all. Amendment 1051 would exclude from the emergency release mechanism anyone convicted on indictment. The thought behind this seems to be the fact that someone was prosecuted on indictment means that their crime was inherently more serious than that of somebody prosecuted summarily. That, in my view, is too simplistic. It is, of course, right that the prosecutor's decision about whether to prosecute someone summarily or on indictment will be based on the prosecutor's assessment of the seriousness of the crime, but the prosecutor's assessment before a trial has begun may not reflect what comes out in court. It is wrong to assume that everyone convicted on indictment is committed a crime that is worse than that of anyone convicted summarily or that those convicted on indictment are inherently more prone to recidivism than anyone convicted summarily. Using the administrative choice that was made about which procedure to prosecute someone under is simply too blunt, in my view, an instrument for deciding which prisoner should be released early in the face of a deadly virus, so I would urge members to reject amendment 1051. On amendments 1054 and 1055, those would exclude from early release those convicted of crimes of violence and sexual crimes. The amendments do not define those terms, and they are not terms that have any generally accepted legal meaning. Agreeing those amendments would therefore introduce considerable uncertainty into the law. It would be a dereliction of this Parliament's responsibilities to pass such ambiguous legislation. Those amendments are not only problematically unclear, they are unnecessary. The bill already excludes from emergency release the most serious sexual and violent offenders. It provides that the power cannot be used to release those serving extended sentences for sexual or violent offences, nor can it be used to release anyone subject to a supervised release order, nor anyone subject to notification requirements under the sexual offences act. On top of those restrictions, it gives prison governors, according to Mr Finlay himself, the power to deny emergency release to any prisoner considered a risk to an identified person. There is no need for amendments 1054 and 1055. They do not work technically, and I would invite Mr Finlay not to press them. Thank you very much, cabinet secretary. Russell Finlay, to wind up and press or withdraw your amendment. I will start with 1050 and the requirement or otherwise of prisoners to undergo a Covid test. I heard what the cabinet secretary had to say. Given that this measure is supposed to be about preventing the spread of Covid, it is illogical that prisoners could be Covid positive and released back into communities. Therefore, I would push that amendment. In respect of 1051, 1054 and 1055, I concede that the wording of the amendments as framed does present problems, and I am grateful to the cabinet secretary for explaining that to me. On that basis, I would be inclined to not move them at this stage. I turn to 1052 and 1053. I am grateful to the cabinet secretary for his willingness to at least consider or discuss how that might work in practice. I look forward to taking it up on that offer. Finally, I will go to the main 2 amendments, which are 1049 and 1057. For all the reasons that I do not think that we have the time to rehearse in my initial points that I raised, I still believe that those powers are not necessary and would urge members to vote against them. The question is that amendment 1049 be agreed to. Are we all agreed? We are not agreed, therefore we will move to a vote. All those in favour of the amendment raise your hand. All those against, raise your hand. There are no abstentions, so the result of the vote is that there were two votes for the amendment, six votes against the amendment, and therefore the amendment is not agreed. Amendment 1023, in the name of Jamie Greene, is already debated with amendment 1049. Jamie Greene, to move or not move. Of the understanding that the cabinet secretary said he would work with me to bring this issue back at stage 3, he is nodding at me. Okay, lovely, thank you. In that case, not moved. I call amendment 1050, in the name of Russell Finlay, already debated with amendment 1049. Russell Finlay, to move or not move. The question is that amendment 1050 be agreed to. Are we all agreed? We are not agreed, therefore we will move to a vote. All those in favour of the amendment raise your hand. All those against, raise your hand. There are no abstentions, so the result of the vote is that there were two votes for the amendment, six votes against the amendment, and the amendment is therefore not agreed. I call amendment 1051, in the name of Russell Finlay, already debated with amendment 1049. Russell Finlay, to move or not move. Sorry, which one? I've just repeated myself. I call amendment 1052, in the name of Russell Finlay, already debated with amendment 1049. Russell Finlay, to move or not move. Not moved. I call amendment1053, in the name of Russell Finlay, already debated with amendment 1049. Russell Finlay, to move or not Not moved. I call amendment 1054 in the name of Russell Finlay already debated with amendment 1049. Russell Finlay, to move or not move. Not moved. And I call amendment 1055 in the name of Russell Finlay already debated with amendment 1049. Russell Finlay, to move or not move. Not moved. Thank you, and that completes that grouping. I now call amendment 1024 in the name of Graham Simpson, grouped with amendments 1025, 1026 and 1008. I remind members that if amendment 1024 is agreed to, I cannot call amendments 1025, 1026 and 1008 due to a preemption. Graham Simpson, to move amendment 1024 and speak to all amendments in the group. Thank you very much, convener. It's been an interesting day and I'm glad I've sat through it. Now, this is a relatively short but important group of amendments. Members will know that I sit on the DPLR committee, Delegated Powers and Law Reform, and we scrutinise every piece of legislation and we produced an excellent and balanced report on this bill. But prior to that, we'd held a mini inquiry into the use of the made affirmative procedure during the pandemic, and it was that which shaped the recommendations that we arrived at for this bill. There are five powers which can use the made affirmative procedure, one which affects this committee today, and that's the power to free prisoners early, which is what you're looking at. So, I should just remind members what the made affirmative procedure does, because that gives the background to the reasoning behind my amendments. It allows an SSI to be made and come into force even though it's not yet been approved by the Parliament, that approval would come later. So, it's making law with no scrutiny and no parliamentary backing. There isn't a vote. The process wasn't common before 2020 but became very common after that. And in our report, that's the DPLR committee, we held to four principles and they're these. The first, given the lack of prior parliamentary scrutiny and the risks to legislative clarity and transparency in the made affirmative procedure, use of the affirmative procedure, which of course allows that scrutiny, should be the default position in all but exceptional and urgent circumstances. Legislation making provision for the made affirmative procedure must be very closely framed and its exercise tightly limited. Second point, the Parliament will require an assurance that situation is urgent. Provision in primary legislation will need to encompass a requirement to provide an explanation and evidence for the reasons for urgency in each case where the procedure is being used and there should be an opportunity for debate in a timely fashion and open to members to seek to contribute. That doesn't happen at the moment. And thirdly, any explanation provided by Scottish ministers should also include an assessment of the impact of the instrument on those affected by it and ministers plans to publicise its contents and implications and this could include details of the relevant Scottish Government website where links to the instrument including where relevant any consolidated version of the instrument it amends as well as any associated guidance can be found. People find it quite difficult to find their way through the legislation. Finally, there will be a general expectation that legislation containing provision for the made affirmative procedure will include provision for sunset clauses to the effect that, A, ministers ability to use the power will expire at a specified date and that, B, any instrument made under the power will be time limited. So, we recommended that the Scottish Government bring forward amendments on each power which can be used by the made affirmative provision so that they would include the following requirements. Scottish ministers should provide a written statement prior to the instrument coming into force providing an explanation and evidence as to why they think it needs to be made urgently when using the made affirmative procedure. Scottish ministers should include an assessment of the impact the instrument has that statutory instruments made under the powers are subject to a sunset provision. The committee nevertheless restated that it would expect the default position to be that the Scottish Government use the affirmative procedure in all but exceptional and urgent circumstances. So, my amendments in this group merely reflect what was a unanimous view of that committee. So, that brings me to amendment 1024 in my name which I'm happy to move. The effect of this is simply that these regulations could only be made using the affirmative procedure and that's my preference. So, if the committee agrees to that, then clearly the other amendments in the group fall. If the committee doesn't agree to that then we move on to the other amendments. I'll mention Keith Brown's amendment which is 1008. This merely allows a minister to provide an explanation of why they think the made affirmative procedure should be used and members will immediately, if they've read the other amendments in the group, they'll realise this doesn't go as far as my own amendments in the group. It'll be very, very easy for a minister to, for instance, just say, we need to act quickly. That's what the experts are telling us and that's the explanation. They could dress it up a bit but if Mr Brown's amendment passes and mine don't then that's what parliament will be left with. My own amendments in this group put parliament front and centre of deciding if the government has it right. So, it's not enough when we're dealing with something as serious as freeing prisoners early to just say, we need to do it, okay? That's not good enough. 1025 says ministers must have made a statement to the parliament with an explanation and crucially evidence as to why regulations need to be made urgently. But more importantly, convener, the amendment says that parliament must agree to that. 1026 is similar but it calls for an assessment of the impact of the regulations and it also includes a sunset clause. I've put a figure on the sunset clause of one year. So, I think I've got this right in that the government is sympathetic to the idea of sunset clauses in general. It hasn't, as far as I can tell, put a figure on it as I have but I've clearly done that and I think a year is a reasonable timescale. So, I hope that's a good summary for the committee and helps you understand the reasoning behind the amendments. Thank you. Thank you very much. Cabinet Secretary, to speak to amendment 1008 and other amendments in the group. Thank you, convener. As I discussed in relation to the previous group of amendments on emergency release, it's important to note that the Scottish Government has no current plans to utilise the prisoner early release power but, as we've discussed, it's necessary to retain the power to take prompt and effective action where it becomes necessary to do so to protect both the safe and effective operation of our prison system and, as I've said, the health and wellbeing of prisoners and prison staff. Amendments 1024 and 1025 in the name of Graham Simpson would significantly impair the Government's ability to take necessary and proportionate action to ensure safety and prisons. For that reason, I can't support either amendment. Amendment 1024 would remove entirely the option of using the made affirmative procedure for emergency release regulations. The result would be that no matter how dire the situation, the emergency release regulations would have to go through the draft affirmative procedure. The result would be that no matter how dire the situation, emergency release regulations would have to go through that procedure. The added time that that would take to complete would make the affirmative procedure delayed. It would delay the implementation also of the release process. If the Parliament was in recess, of course it could take even longer. When good order in our prisons and the lives of prisoners and prison staff and their families may be put at risk, delaying action on that scale is simply not appropriate. The same problem arises with Mr Simpson's amendment 1025. This amendment would allow the made affirmative procedure to be used, but only after a ministerial statement in the chamber and the Parliament's voting to approve its use by resolution. Again, especially during a parliamentary recess, this is building delays into the process in a way that risks lives and good order in our prisons, and I'm sure that's not what Mr Simpson wants. It's not what the Delegated Powers and Law Reform Committee has called for, and I divide Mr Simpson not to move amendments 1024 and 1025. I turn then to amendment 1026, also in the name of Graham Simpson. This would do broadly two things. It would create new process requirements for the Government to meet if emergency release regulations are produced under the made affirmative procedure, and it would make any regulations produced under that procedure subject to a one-year sunset clause. A one-year sunset on emergency regulations is of questionable value. In practice, the whole point of emergency release regulations is to free up capacity in the prison estate rapidly, so it's hard to imagine that regulations we've made to have affect over a period exceeding a year. For example, releases under the May 2020 regulations were affected over a 28-day period. It's also odd for a one-year sunset period to be attached specifically to regulations produced under the made affirmative procedure. Regulations under the made affirmative procedure cease to have effect unless approved by resolution of the Parliament within 28 sitting days of their being made. By definition, any regulations that were still in effect one year after being made would have been approved by the Parliament, just like regulations made under the draft affirmative procedure. Mr Simpson doesn't seem to think that they need to be made subject to a one-year sunset clause. I appreciate that applying a sunset clause to regulations under the made affirmative procedure was a general recommendation of the Delegated Powers and Law Reform Committee in relation to the bill. The Government's response to the Covid-19 committee did indicate agreement with that underlying principle, but with the caveat that it would only be appropriate in relation to the nature of the power in question. As I have just discussed, such a measure does not seem appropriate in regard to prisoner early release regulations. Amendment 1026 has also had some process requirements in relation to regulations produced under the made affirmative procedure, so would amendment 108 in my name. Members will not be surprised that I invite them to support my amendment over Graham Simpson's. Both my amendment 1008 and Graham Simpson's amendment 1026 call for regulations under the made affirmative procedure to be accompanied by a statement explaining why the regulations need to be made urgently under that procedure. I have considered the issues that were brought out during stage 1 by the Delegated Powers and Law Reform Committee and the Covid Committee. As signalled in the Government's response to the committees, amendment 1008 provides for an explanation of urgency if the made affirmative procedure needs to be used in urgent circumstances. I consider that the Government amendment 1008 fully addresses the points made by scrutiny committees at stage 1 and it should be preferred. Members will also be aware that the parliamentary authorities are working with Government officials on a protocol for an expedited draft affirmative procedure in appropriate cases, in line with other discussions for how such a statement should be provided in regard to other aspects of the bill, which can be subject to the made affirmative process. I suggest that it would be appropriate to use a similar process to that which has been used over the past two years for the Covid public health regulations, which is for the Minister to write to the Presiding Officer and committee conveners explaining the circumstances. So, in conclusion, convener, I invite members to support amendment 1008 in my name and would ask Mr Simpson not to press amendments 1024, 1025 and 1026. Thank you very much. Thank you, and I'll keep this brief rather than intervening. I thought I'd let the Cabinet Secretary make his case, but I would respond with one comment, and that's the argument seems to be that the affirmative procedure in such an emergency scenario would simply take too long and would have an effect on the policy intention. I would question how long is too long and how long would the affirmative procedure actually take in practice and how long has it taken historically to question whether it would actually take too long. Surely, if the argument is that, if Parliament was in recess, that the amendment has drafted meant that nothing would happen for months on end, I would dispute that context because what we found during the coronavirus emergency is that in those emergency scenarios, Parliament A could be recalled and could sit virtually or otherwise to pass legislation or regulations in the affirmative procedure, for example, in this case, or the amendment could easily be fixed on a technical level to ensure that this would only be the case when Parliament was sitting and when there was sufficient time to give the affirmative procedure its due process. We also know that the Government has expedited regulations and law-making powers when it suits them in the past, so we know that that process can be shrunk, not just to days but almost to hours. I absolutely dispute the argument against the amendments that are being offered by Mr Simpson for those reasons. I thank Mr Brown and Mr Greene for their comments. I would say that, to summarise Mr Brown's position, if I may, it seems to be that, sadly, he wishes to reject all my amendments, even though they are perfectly reasonable, as he well knows, on the basis that he thinks that they would add delays into the system. And yet, in his same contribution, he notes that Parliament is already looking at a protocol to deal with the affirmative procedure more quickly. That stemmed from the work of the DPLR committee. It is indeed the case that we are looking at that. I would say that, to follow up on Mr Greene's comments, this Parliament has shown that it can act extremely quickly when necessary, so having an expedited affirmative procedure could be done and should be done, and it should allow what I am suggesting in 1025 that ministers come to Parliament, give a statement, we debate that, they have to present evidence and then we vote on it. That is what we are here to do. Rather than the current position where ministers do not have to do any of that, they can just do what they like. No evidence taken, no vote until later, until something is in force. So I am merely trying to correct what I think is a parliamentary wrong. So that is 1025, I will press that. 1024 is, as I explained earlier, me saying that we should not be able to use the made affirmative procedure, it should just be affirmative and I am sticking to that. I will give ground, unlike Mr Brown, on 1026 because I accept that perhaps applying a blanket sunset clause of a year across this bill might be wrong and maybe we should have some flexibility there, so I will not press 1026, but I will press the other ones. So the question is that amendment 1024 be agreed to, are we all agreed? Mr Simpson, can I just confirm? I have maybe jumped forward. So you move at your pressing 1024. Thank you very much. So I will just ask that question again in that case. The question is that amendment 1024 be agreed to, are we all agreed? Thank you. So we are not agreed, therefore we will move to a vote. All those in favour of the amendment raise your hand. Thank you. All those against raise your hand. There are no abstentions, so the result of the vote is that there are four votes for the amendment, four votes against the amendment. There is an equality of votes, therefore, as convener, I will use my casting vote and vote against the amendment. The amendment is therefore not agreed. I call amendment 1025 in the name of Graham Simpson, already debated with amendment 1024. Graham Simpson to move or not move. The question is that amendment 1025 be agreed to, are we all agreed? We are not agreed, therefore we will move to a vote. All those in favour of the amendment raise your hand. Thank you. All those against raise your hand. There are no abstentions, so the result of the vote is that there are four votes for the amendment, four votes against the amendment. There is an equality of votes, therefore, as convener, I will use my casting vote and vote against the amendment. The amendment is therefore not agreed. I call amendment 1026 in the name of Graham Simpson, already debated with amendment 1024. Graham Simpson to move or not move. Convener, I won't move this, but I don't know how long you're planning to continue, but my work is done after this. If I could ask colleagues to press Mr Whittle's remaining amendment, if you're continuing, I'd be very grateful for that, so I'm not going to move this one. That's fine. I call amendment 1008 in the name of the cabinet secretary, already debated with amendment 1024. The question is that amendment 1008 be agreed to. Are we all agreed? Yes. The question is that the schedule be agreed to. Are we all agreed? Yes. The question is that section 39 be agreed to. Are we all agreed? I call amendment 1027 in the name of Katie Clark, already debated with amendment 1011. Katie Clark to move or not move. I call amendment 1028 in the name of Katie Clark, already debated with amendment 1011. Katie Clark to move or not move. I call amendment 1029 in the name of Jamie Greene, grouped with amendments 1030, 1031, 1032 and 1033. Jamie Greene to move amendment 1029 and speak to all the amendments in the group. Thank you. It sounds a lot but it isn't. So the second bunch of amendments 3013233 on the face are technical but seek to achieve some of what Mr Simpson was trying to and that's revert scrutiny of regulations from the negative to the affirmative procedure, specifically regulations under sections 39, 40 and 41, which currently are split between two differing procedures. That's the rationale for that and I don't think we need to rehearse too much the arguments for why I think that's helpful and appropriate given the debate we just had. The other two amendments that I'll just briefly address, 1029, is in relation to the exploration of these temporary justice measures and their subsequent potential extensions. So as we know, they're due to expire on 30 November 2023, those which are indeed temporary not permanent measures in the bill. However, ministers may, by regulation, increase that 2023 exploration by one year but no later than November 2025. Again, fine. We've had a debate about that as well. Amendment 1029 seeks to ensure that such extension may not take place without consulting with victim organisations to seek their views on such modification and again I think it won't come as a huge surprise as to why I feel that's appropriate given the effect that this extension will have on them and those organisations, which have been widely quoted in today's debate on a wide range of issues. I hope that that's not a contentious proposal given the subject matter that we're looking at. 103 is slightly different, however, adds a new section at the end after expiry of the temporary justice measures and that's called review of temporary justice measures. Sub clause 1 sums up quite nicely. It just says that ministers must review and report on the operation and effectiveness of the temporary justice measures in this act. Publish a report, lay that report before Parliament and consult persons as they consider appropriate. I've left that intentionally quite loose for ministers so I haven't gone into great detail of what should be in that report. We've already had debates about being overly restrictive or specific about what reports can and can't do and who they should or shouldn't talk to, but I do feel that if we are going to extend these justice measures to 2025, which is a long time away, I think it would be appropriate that ministers conduct a review on the operation and effectiveness of these temporary measures and report back to Parliament and give us a chance to properly scrutinise them in due course. I recognise that Jamie Greene's amendment 1030 seeks to maintain similar oversight and transparency and I am supportive of that principle. I also absolutely accept the importance of continuing to engage with victim organisations on the measures that his amendment 1029 seeks to provide for. However, the drafting of any additional consultation and reporting requirements will need to be considered carefully to ensure that they complement and work alongside the existing provisions in the bill, which already require ministers to provide Parliament with a statement of reasons when seeking to extend measures in the schedule. I would therefore invite Jamie Greene not to press his amendments today and instead to work with us on a stage 3 amendment that we are able to support. Outcome to amendments 1031, 1032 and 1033, which would make regulations suspending, reviving and expiring early the temporary justice measures subject to the affirmative procedure, and I do not support that. The Scottish Government is committed to expiring temporary provisions enacted to respond to the Covid pandemic when they are no longer necessary or proportionate. We also have a responsibility to ensure that the right measures are in place at the right time to support our justice system as it recovers from the backlog. Mention was made previously, I think, by Mr Greene that the Government can do these things when it suits them, while it certainly suits the Government to take action in the face of a deadly virus to protect the health and safety of individuals. Using the negative procedure for the powers in sections 39 and 41 supports these aims, it provides the flexibility to suspend, revive or expire provisions swiftly in response to changing or unforeseen circumstances, while still allowing for parliamentary scrutiny. A decision to expire, suspend or revive provisions would be led by the evidence at the time. Using the negative procedure means that we can take action that will come into effect quickly when the evidence supports that, and using the affirmative procedure could mean our response to the evidence was delayed and the measures were not in place when they were most needed or were enforced for longer than necessary. In particular, applying the affirmative procedure to these regulations would mean that provisions that are no longer necessary could not be switched off during the months of the Parliament's summer recess without recalling the Parliament. That is not something that the Delegated Powers and Law Reform Committee has called for in relation to this bill, nor is it what the Parliament wanted in relation to either the two emergency acts. Therefore, do not support amendments 1031, 1032 and 1033, and we invite Jamie Greene not to press them. Thank you very much. Jamie Greene to wind up and press or withdraw. I welcome the comments that were made on 1029 and 1030, and I think that we all want amendments that are fit for purpose. I will work with the Government on those. The points that I have around 31, 32 and 33 are important, and I will press them, because the Government is seeking to use a technical argument about why the affirmative procedure takes too long to the effect of that is simply to avoid due scrutiny by the Parliament on its proposals, so I will push them nonetheless, but I will withdraw for the benefit of the record 1029. Is the committee content with the amendment being withdrawn? The question is that section 40 be agreed to. Are we all agreed? I call amendment 1030, in the name of Jamie Greene, already debated with amendment 1029. Jamie Greene to move or not move. The question is that section 41 be agreed to. Are we all agreed? I call amendment 1031, in the name of Jamie Greene, already debated with amendment 1029. Jamie Greene to move or not move. The question is that amendment 1031 be agreed to. Are we all agreed? We are not agreed, therefore we will move to a vote. All those in favour of the amendment please raise your hand. All those against raise your hand. There are no abstentions. The result of the vote is that there are four votes for, four votes against. There is an equality of votes, therefore, as convener, I will use my casting vote and vote against the amendment. The amendment is therefore not agreed. I call amendment 1032, in the name of Jamie Greene, already debated with amendment 1029. Jamie Greene to move or not move. I call amendment 1033, in the name of Jamie Greene, already debated with amendment 1029. Jamie Greene to move or not move. The question is that section 42 be agreed to. Are we all agreed? I call amendment 1032, in the name of Brian Whittle, already debated with amendment 1011. The question is that amendment 1032 be agreed to. Are we all agreed? We are not agreed, therefore we will move to a vote. All those in favour of the amendment raise your hand. All those against raise your hand. All those abstaining raise your hand. The result of the vote is that there are two votes for the amendment, four votes against the amendment, there are two abstentions, therefore the amendment is not agreed. I call amendment 1056, in the name of Pauline McNeill, already debated with amendment 1011. Pauline McNeill to move or not move. I am not moving on the basis that I need to consider for stage 3 whether or not it is, in fact, a new policy. I already think about that, so I am not moving it on that basis. The question is that section 43 be agreed to. Are we all agreed? I call amendment 1004, in the name of the cabinet secretary, already debated with amendment 1011. Cabinet secretary, to move formally. The question is that amendment 1004 be agreed to. Are we all agreed? I call amendment 1057, in the name of Russell Finlay, already debated with amendment 1049. Russell Finlay to move or not move. The question is that amendment 1057 be agreed to. Are we all agreed? We are not agreed, therefore we will go to a vote. All those in favour of the amendment raise your hand. All those against raise your hand. There are no abstentions. The result of the vote is that there are two votes for the amendment, six votes against the amendment. The amendment is therefore not agreed. The question is that section 44 be agreed to. Are we all agreed? I call amendment 1034, in the name of Katie Clark, already debated with amendment 1035. Katie Clark to move or not move. That ends stage 2 consideration of the bill. The legislation team will now produce the as amended version of the bill, showing all the amendments made by the committee to the bill. This will be available to members in the next few days. I take this opportunity to thank all those who have assisted the committee during its scrutiny of the bill. I now will suspend the meeting for a few minutes before the next agenda item. The next item of business is consideration of the online safety bill legislative consent memorandum. I welcome back Keith Brown, cabinet secretary for justice and veterans. I also welcome Patrick Down, criminal justice division of the Scottish Government. I refer members to paper 1. I invite the cabinet secretary to make a short opening statement. Thanks, convener. The overarching purpose of the UK Government's online safety bill is to establish a new regulatory regime to address illegal and harmful content online. In particular, the bill creates new duties on providers of internet services to deal with illegal and harmful content and activity, and it confers new powers on offcom to act as the online safety regulator who will be responsible for enforcing the legal requirements imposed on service providers. The power to legislate on the subject matter of this bill is almost entirely reserved to the Westminster Parliament. However, the bill extends the executive competence of the Scottish ministers in two very narrow areas, which is why the LCM is required. Firstly, it provides a power for the Scottish ministers to amend by affirmative order a list of education and childcare providers exempt from the legislative framework for the regulation of user-to-user internet services. If I could just briefly explain the reason that these services are exempt, many education and childcare providers are subject to existing duties to safeguard children, which require them to protect children online. The exemption ensures that regulation of online safety is proportionate and that these education and childcare providers are not subject to duplication of regulatory oversight by offcom. That power enables the Scottish ministers to ensure that descriptions of education and childcare providers can be updated to deflect any future changes to how such services are provided or to take account of different safeguarding duties applicable to such providers in Scotland. Secondly, the bill extends the executive competence of the Scottish ministers by providing a power to amend the list of child sexual exploitation and abuse offences that are at part 2 of schedule 6 of the bill. The bill places a duty on providers of internet services to proactively remove content posted by users of their sites that would amount to child sexual exploitation and abuse offences. Those include, for example, offences concerning indecent images of children. The power will enable the Scottish ministers to update the list of offences to account for any future reform of the law in this area, rather than having to rely on those changes being made in the Westminster Parliament. That reflects that the underlying criminal law in this area is devolved, so it is appropriate that that power sits with Scottish ministers. I am happy to take any questions, convener. Thank you very much, cabinet secretary. I will now open it up to members if you have any questions on the memorandum. Thank you very much, convener. I just want to acknowledge, cabinet secretary, the importance of the legislation. I know in the chamber in various debates regarding vans against women. We have also highlighted the importance of cybercrime and the harms that can happen online. I just want to denote for the record, just as an example, that 70 per cent of girls aged 12 to 18 had been unsolicited nude images of boys, or men. I just want to acknowledge the importance of something to monitor. I wonder if you would agree that it is important to monitor how effective the legislation would be in the long run, because we need to make sure that it is worth anything that it is going to be useful to protect women and girls from images. I am sure that you do agree that it is still part of the unfortunate umbrella of violence against women and girls. I very much agree with the sentiments. However, I would say that the vast bulk of the legislation is reserved. The two areas that we would want to monitor would be the two very narrow areas, but I am sure that, in general, everybody will be looking at how effective the legislation is for the reasons that Pauline McNeill has outlined. I just wanted to ask whether the Scottish Government had asked the UK Government for any changes to the bill, or is it content with the wording, as it is? I might get Mr Down to add to that, but it is true to say that we are not yet finished with that dialogue with the UK Government. There is still more work to be done, but I do not know if Mr Down wants to add to that. I repeat what the cabinet secretary has said. There are a number of technical areas where we are still in discussions with UK officials about possible changes through their amendment scrutiny of the bill at Westminster. I wonder whether I can request that you remain with us for a couple more minutes while we formally consider the LCM. The committee will now formally consider the legislative consent memorandum on the online safety bill. Do any members who want to highlight any issues that they would like to have included in the committee's report on the LCM? Does the committee agree that the Scottish Parliament should give its consent to the relevant provisions in the online safety bill, as set out in the Scottish Government's draft motion? Thank you very much. Are members content to get delegated to me, the publication of a very short factual report on the outcome of our deliberation on the LCM? The issue now moves to the chamber for all members to decide on the basis of our report. We will now have a very short suspension to allow Scottish Government officials to swap over. Thank you very much. The next item of business is consideration of evidence on an affirmative instrument. It is the legal aid and advice and assistance miscellaneous amendments Scotland number 2 regulations of 2022. I thank Keith Brown, cabinet secretary for justice and veterans for remaining with us for this agenda item. I also welcome Justin Haxias, unit head, access to justice of the Scottish Government. I refer members to paper 2, and I invite the cabinet secretary to speak to the instrument. Thank you again, convener, and thank you for the opportunity to speak to the committee about legal aid and advice and assistance. Miscellaneous amendments Scotland number 2 regulations 2022. Those regulations have been brought forward primarily to support the proposed replacement of the temporary measures that were introduced to support legal aid providers at the beginning of the pandemic by way of the legal aid and advice and assistance miscellaneous amendments coronavirus Scotland regulations 22, with permanent provisions with equivalent effect. The measures introduced in the 2020 regulations benefited legal aid providers by providing for enhanced interim fee arrangements to support cash flow and provision to facilitate greater delegation between solicitors in order to assist with the management of cases and court appearances. The provisions in this instrument align with the Scottish Government's intention to make permanent changes to the Legal Aid Scotland Act 1986 by way of the coronavirus recovery and reform Scotland Bill, namely an enhanced provision of interim fee arrangements to support cash flow to legal aid providers. Those regulations also provide a person being prosecuted under summary procedure and who has been liberated by police to appear at court on an undertaking may appoint a solicitor of their choice to advise or act for them, even where a duty solicitor is made available, increasing access to a solicitor of choice. That is just a brief hunt overview of the regulations in their context, convener. I am happy to try to answer any questions that might arise. Thank you very much. We will now move to questions. Jimmy Greene. Just a brief one, given that the only evidence that we are taking is from the Government, could the cabinet secretary summarise or perhaps paraphrase how the legal profession has received this change and whether the permanent change is being proposed or being positively received or otherwise? It slightly predates my time as cabinet secretary, but I understand that those were asked for and welcomed by the profession, but perhaps if we can just get Mr Hackey to confirm or otherwise? Yes, they have been welcomed in general. The regulation allows for earlier interim payments so that, over a course of delayed or extended proceedings, solicitors acting can receive payments in the course of those proceedings. In that case, I invite Keith Brown, cabinet secretary, to move the following motion lodged in the name of the minister, Ash Regan. Motion number 04413 that the criminal justice committee recommends that the legal aid and advice and assistance, miscellaneous amendment Scotland number two regulations of 2022, in draft, be approved. The question is that motion 04413 in the name of Ash Regan be agreed. Are we all agreed? Thank you very much, cabinet secretary, for attending. You can escape now. That concludes our meeting. The next meeting of the committee will be on the morning of Wednesday, 15 June, when we will hear from the new Scottish Biometrics Commissioner, Dr Brian Plasto, on his draft code of practice on the acquisition, retention, use and destruction of biometric data for criminal justice and police purposes in Scotland. I now close this meeting.