 Rwy'n fawr i ddiweddwyr y Cymru, 10 ym 2017. Rwy'n fawr i ddweud o Olyfyr Mondell, ac rwy'n fawr i ddweud o Alexander Stewart, wrth i ddoddodd i ddweud i ddwygol. Ysgol yng nghymru ym 1 yn ddeglirio'r fawr, Alexander, ddoddodd i ddeglirio'r fawr i ddeglirio. I am claims to be here. I am still a serving member on the person can ask council and I sit on the community safety committee until the 4th of May. Thank you for that. Agenda item number two, supporting legislation. This is consideration of the affirmative instrument on the Scottish tribunals, listed tribunals, regulations 2017. I welcome to the committee Annabel Ewing, Minister of community safety and legal affairs, along with her officials, Hanna Wfroddsham, policy executive, Sandra Wallacey, apology manager, and John Sinclair, senior principal legal officer with the Scottish Government. I refer members to paper number one, which is a note by the clerk, and paper two, which is the Scottish Government briefing note. I invite the minister to make a brief opening statement. Good morning, thank you, convener. The first SSI this morning is the Scottish Tribunals Brackets Listed Tribunals Close Brackets Regulations 2017. Those regulations removed the Crofting Commission from the Listed Tribunals, that is the list of tribunals in schedule one of the Tribunals Scotland Act 2014. The list of tribunals in schedule one of that act was taken from a report by the former UK wide body, the Administrative Justice and Tribunals Council, which listed those tribunals that they considered to be devolved. The Administrative Justice and Tribunals Council was before its abolition in 2013 required to keep the administrative justice system under review. During the bill stage of the Crofting Reform Scotland Act 2010, there was discussion about the Crofting Commission's status. Ministers at the time were minded not to remove it from the list of tribunals at that time so as to keep it within the supervisory remit of the AJTC. However, as I said, the AJTC was abolished in 2013 and the Tribunals Act does not include provision for a statutory body to have a supervisory role over the Scottish tribunals. In the absence of a supervisory body and given that the Crofting Commission is not a tribunal in the true sense of the word, it is considered that the Crofting Commission can now be removed from the list of tribunals list in schedule one of the 2014 act. I will be happy to answer any questions, convener. Thank you. Ministers, do members have any questions? John Finnie. Thank you for the recommendations for day-to-day business of crofting, please, as a result of this proposal. No, I can't see that. In fact, we undertook a consultation on the SSI and that was between 26 May and 24 June 2016, and we received seven responses. Six of the seven were content with the proposals. There was one response from a crofting law solicitor, Brian Inkster, and he felt that the Crofting Commission should be retained as a tribunal. The main issue of concern that Mr Inkster had was that, with regard to the use of a particular section of the crofter's legislation, which allows the Crofting Commission to make an inquiry and then remove any or all of the members of a grazing committee from office, his concern is that there is no right of appeal to the Scottish Land Court, and therefore the only appeal is right of appeal as judicial review. He felt that if the Crofting Commission were to transfer into the Scottish tribunals, there would be an appeal to the upper tribunal. For the reasons that I have said, the Crofting Commission is not a tribunal in any event in the true sense of the word. It was a historical quirk that there was mention of the Crofting Commission in the listed tribunals because of the role, the supervisory role, at that time of the AJTC. In terms of our programme for government, the member will be aware that we will be bringing forward during the term of this Parliament crofting legislation. In the context of that legislation, it may be that this issue in terms of the right of appeal will be brought to the forefront of debate. Obviously, we will engage with stakeholders when we get to that stage. That is what I was going to ask. There are a lot of issues at the moment with crofting. Why now with this? Why not wait? Does it substantially alter the relationship with the Land Court? No. The reason why now is that in 2013 the AJTC was abolished. We are moving into the Implementation of the 2014 Act. We are looking at having the statutory simplified framework in place. That is an anomaly that arose for the reasons that I have stated. Therefore, we felt that it was timely now to deal with that anomaly. In terms of the daily workings of the Crofting Commission, that should make no difference. Since 2013, there has been no supervisory role exercised in any event. Now, of course, the Scottish Tribunal system is the Lord President that sits at the head of that system. On a day-to-day basis, that should not make any significant substantive difference, but it is a tidying up exercise. As we go forward with the crofting legislation over the term of this Parliament, the issue of the right of appeal will be one that will be brought to the forefront of debate. Does that change in any way? It does not change as a result of this. Stuart Stevenson, it is just a simple little question in relation to the Scottish Tribunal structure as a whole. I just wonder if there are any other outstanding matters in relation to bringing existing bodies into the Scottish Tribunal structure that we might expect to see in due course? Yes. It is planned that all the devolved tribunals will be brought within the Scottish Tribunal structure as set forth in the 2014 legislation, and there is a timetable for the proposed implementation of that. Therefore, we will proceed on that basis. Obviously, that will be done by a way of bringing to this committee the relevant SSIs for the committee's deliberations and consideration. I am just looking at my papers because I think that the next tribunal to be considered will be the assisted additional support needs tribunal, and that will be in the autumn that we will be hoping to bring the SSI to the committee. There is a rolling programme in terms of devolved tribunals, and of course there is the position of the reserve tribunals, and that is further down the line as well. Fee? Nothing further to add. Do any members have any other questions? That being the case, we now move to agenda item number three. This is formal consideration of the motion in relation to the affirmative instrument. The DPLR committee has considered and reported on this instrument and has no comment on it. The motion is motion 04152 that the Justice Committee recommends that the Scottish tribunals, regulations 2017 draft be approved. Can I invite the minister to speak and or move the motion? I have formally moved, convener. Members have any further comments? That being the case, the question is that motion 04152 in the name of anumbo Ewing be approved. Are we all agreed? We are agreed. That includes consideration of the affirmative instrument. The committee's report will note and confirm the outcome of the debate. Can I have the committee's agreement to delegate to me, as convener, the authority to clear the final draft report? Thank you for that. Agenda item four, the burden that legislation is consideration of four affirmative instruments relating to the transfer of the Scottish tax tribunals to the Scottish tribunals structure. As they are linked instruments, we are taking evidence on them together. I refer members to paper three, which is a note by the clerk, and paper four, which is the Scottish Government's briefing note. I again ask the minister to make a short opening statement. This suite of fairly technical regulations will transfer the Scottish tax tribunals into the Scottish tribunals structure created by the Tribunals Scotland Act 2014. The first of the regulations before you today is the First Year Tribunal for Scotland tax chamber and Upper Tribunal for Scotland composition regulations 2017. Those regulations specify the type of member who will hear cases in the tax chamber. Those provisions mirror the existing composition of the First Year tax tribunal. That instrument also sets out the composition of the Upper Tribunal when hearing appeals from the First Year Tribunal tax chamber. The regulations allow for a legal member of the Upper Tribunal or a court of session judge to hear an appeal in the Upper Tribunal. That again mirrors the previous arrangements. The president of tribunals will determine who hears those appeals. The president may also select herself, the chamber president or indeed the Lord president, if appropriate. The next instrument before you is the Tribunals Scotland Act 2014 ancillary provisions regulations 2017. That instrument revokes part 4 and scheduled two of the Refindu Scotland and Tax Pairs Act 2014. Those sections establish the Scottish tax tribunals and their procedures. The instrument also revokes four regulations which establish the conduct and fitness assessment tribunals, the time limits and rules of procedure for both the First Year and Upper tax tribunals, the eligibility for appointment to the Scottish tax tribunals and rules concerning voting and offences in proceedings. Those are all covered by provisions in the tribunals act, so they are no longer necessary. For brevity, convener, I will summarise the last two regulations together. They are the First Year Tribunal for Scotland, transfer of functions of the First Year tax tribunal for Scotland regulations 2017 and the Upper Tribunal for Scotland, transfer of functions of the Upper Tax Tribunal for Scotland regulations 2017. Those two regulations simply transfer the functions and members of the First Year tax tribunal to the First Year Tribunal for Scotland tax chamber and the functions of the Upper Tax Tribunal to the Upper Tribunal for Scotland. In addition, the regulations set out the transitional procedure for cases that are in progress on the date of transfer. As the First Year and Upper Tax Tribunals are listed separately in the Tribunals Act, each of the jurisdictions needs to be dealt with in separate instruments. In conclusion, convener, it is the case that each of these instruments plays a part in enabling the transfer of the tax tribunals to the new structure. Again, I would be happy to take any questions. Do members have any questions for the minister? That being the case, we move to agenda item 5, which is a formal consideration of the motions in relation to the four affirmative instruments. The DPLR committee has considered and reported on these instruments and has no comment to make. Each motion will be moved with an opportunity for debate, if that is necessary. The first motion is motion 0, 4, 1, 5, 1. The Justice Committee recommends that the First Year Tribunal for Scotland tax chamber and Upper Tribunal for Scotland compensation regulations 2017 draft be approved. I invite the minister to speak to the motion. Does any member have any comment to make? That being the case, the question is that motion 0, 4, 1, 5, 1 in the name of Annabel Ewing be approved. Are we all agreed? The second motion is motion 0, 4, 1, 5, 3. The Justice Committee recommends that the Tribunal for Scotland tax chamber and Upper Tribunal for Scotland compensation regulations 2017 draft be approved. I invite the minister to move the motion. Are there any questions from members? That being the case, the question is that motion 0, 4, 1, 5, 3 in the name of Annabel Ewing be approved. Are we all agreed? The third motion is motion 0, 4, 3, 3, 6. The Justice Committee recommends that the First Year Tribunal for Scotland transfer of functions of the First Year tax tribunal for Scotland regulations 2017 draft be approved. Minister, can I invite you to move the motion? Do members have any questions? That being the case, the question is that motion 0, 4, 3, 3, 6 in the name of Annabel Ewing be approved. Are we all agreed? The fourth and final motion is motion 0, 4, 3, 3, 7. The Justice Committee recommends that the Upper Tribunal for Scotland transfer of functions of the Upper Tax Tribunal for Scotland regulations 2017 draft be approved. Minister, can I invite you to move the motion? I formally moved. Thank you. Do members have any questions? That being the case, the question is that motion 0, 4, 3, 3, 7 in the name of Annabel Ewing be approved. Are we all agreed? Thank you. That concludes consideration of these affirmative instruments. The committee's report will note and confirm the outcome of the debate on all four instruments. Is the committee content to delegate authority to me, as convener, to clear the final draft report? Thank you to the minister and her officials for attending and can we suspend briefly to allow for a change of officials. Item 6 is our final evidence session of the limitation childhood abuse Scotland bill. I refer members to paper 5, which is a note by the clerk and paper 6, which is a spice briefing paper. I welcome back the minister, who is accompanied by Eleanor O, policy manager and Scott Matheson, the senior principal legal officer with the Scottish government. Minister, do you want to make an opening statement? Thank you, convener, if I may. As the committee will be aware, over the past few years, there has been an increasing awareness of the blight of historical childhood abuse and the fundamental challenges that survivors have faced in getting recognition and support, including access to justice. You will also be aware that many survivors have campaigned long and hard for reform to the current limitation regime. The difficulties faced by survivors in accessing the civil justice system were clearly highlighted by the Scottish Human Rights Commission in their interaction process. Survivors have, I would say, been let down repeatedly. They were severely and fundamentally let down by their abuser and by the adults who were meant to protect them at the time. However, they have once again been let down by a justice system, which has effectively denied them access to a remedy. I am therefore pleased to bring forward this bill, which will remove a barrier for survivors in accessing justice. The barrier, the three-year limitation period, has meant that survivors have had to justify to the court why they did not raise an action earlier, a process that has proved extremely stressful and degrading for many survivors. I have listened carefully to the previous evidence sessions. As the committee has noted, the bill is no panacea and raising a civil action will not be the solution for all survivors. However, the bill is about widening the number of options available to survivors and ensuring that they are not faced with an insurmountable barrier should they choose to raise a civil action. The bill is very much about striking a balance, and there have been a number of difficult issues that I have had to grapple with. Those include the need to carefully consider the implications of the European Convention on Human Rights at every step of the process. It has also included striking a balance between being inclusive and, at the same time, seeking to avoid unintended consequences. The measures in the bill are intended to give the much-needed reboot to the system that one witness before you spoke about. At the same time, I have made every effort to ensure that the provisions in the bill are justified and are proportionate. As I am sure that we will discuss in more detail today, care has to be taken where this balance is struck. There is a real possibility that the aim of the bill will be undermined and that the process is severely frustrated should we upset that balance. Finally, I would like to point out that the bill is part of a range of measures that the Scottish Government is taking forward for survivors of childhood abuse. As the committee will be aware, other measures include the Scottish Child Abuse Inquiry, the Survivor Support Fund and the consultation on financial redress. I suppose that the first and obvious question is why I have a bill at all. I asked that question in the context of what they chose to do in Jersey where they established the historic abuse redress scheme, which is outside both the civil and criminal justice system. Of course, Jersey is a small jurisdiction. The problems were distinct and different in Jersey, so I do not map one to the other. However, to what extent options short of legislating were considered and why they were not seen as the way forward for dealing with the injustice that we all recognise is quite validly waiting to be addressed. What we are looking at here is, as I said, that the Scottish Government has taken a number of actions forward and is progressing a number of actions, one of which is the improvement in terms of access to justice through the civil law of our country and an issue identified by the survivors themselves as being a barrier at the present time. Therefore, this is responding to requests from survivors that we look at specifically the limitation issue. In terms of the issue of a redress scheme, we are in the process of ensuring that there will be engagement and consultation on financial redress for in-care survivors. We expect that consultation to proceed in the months to come and we will carefully consider the submissions made. That process is under way. We speak in terms of the work of Celsus and the interaction action plan review group in paving the way and ensuring engagement, including looking at what we can learn from international experience. That work is going on at pace in terms of in-care survivors. However, what we are looking at here is the civil law of Scotland. While there is the possibility, in principle, of raising an action for reparation, we have seen that the hurdles that have to be overcome for those claimants have actually proved insurmountable. I think that there has been one case where the discretion of the courts under 1973 has been exercised. That is, to me, eminently not fair. If we have a civil law system, we have to ensure that there is equal access to everybody to the remedies that are there. That is therefore part of the suite of measures that the Scottish Government is pursuing to ensure that survivors of historic child abuse get the justice that they deserve. In essence, the operation of the Scottish legal system requires us to act and legislate to ensure that barriers that may not have existed in other jurisdictions of a similar kind such as might have been the case in Jersey without opening up too big a discussion on that subject are why we are finding ourselves with primary legislation. In terms of the need to ensure that under the civil law of Scotland it is there for everybody and not just some people, that is why we have proceeded with legislation on limitation and responding to the wishes of the survivors and responding to the fact that that has been highlighted as a problem for some years now and that is what we are responding to today with the limitation bill. The member asked in his first question about what alternatives the Scottish Government considered, because, obviously, that raises issues in terms of the legal certainty, the finality of the law, the rights of the defender to have fairness under the legal system. We did look at alternatives in terms of ascertaining whether or not there might be another way to reach the same objective, but we considered that various things set out clearly in the policy memorandum to the bill. For example, we considered whether just having no limitation period at all for any action could be a possibility and, of course, that would I think fall foul off the European convention. We considered whether we could extend the limitation period for all actions, but, again, that met with resistance from other claimants. Also, it would not really solve the problem that we have faced with survivors of historic childhood abuse. We considered whether window legislation—I think that they have had that in the United States—could be appropriate whereby you give a year window in which claims can be brought forward. Again, if you are not ready to raise your action in that window, that will not help you, nor will it help in terms of cases going forward when you revert back to the limitation period. For those people for whom limitation has been a problem because of the nature of the heinous abuse, the heinous behaviour and the heinous harm that is caught within that definition, that will not help them either. We have considered a number of alternatives, but for the reasons that we stated as set forth in detail in the policy memorandum, we felt that they were not going to secure the objective sought, which is to remove this obstacle to justice on the part of survivors of childhood abuse. I know that Stewart has another line of question before we leave this one. I think that if we have learned anything or heard a message loud and clear from the survivors that gave evidence that it was consult them in advance, do I take it that there was no consultation about the jersey scheme with survivors? There has been a number of strands of work, and that is what I was trying to refer to in my opening statement. In terms of the work on redress, there has been, as far as I am aware, a number of conversations with survivors over the period of time. In terms of the most recent conversations, the process is being conducted now by Celsus and by the interaction plan review group to make the necessary arrangements to pave the way for this consultation. The engagement and the consideration of the responses is something that has been put in place further to discussions with the survivors on the subject. That has been a subject that survivors have had an opportunity to discuss. Of course, with the consultation that we expect to see in the months to come, there will be a further opportunity to make detailed submissions to that consultation. The view of survivors there for on the jersey? I would not want to suggest that all survivors take the same view on all subjects because that is not the case. On the issue of financial redress, the Deputy First Minister announced that this was the way that we were intending to proceed after he had conversations with survivors. I think that he wrote to the education convener just some weeks ago to confirm that that is how we were going to proceed. Obviously, in the context of that process and the consultation, for those who feel that the jersey model is the way forward, they will not hesitate in making their submissions known to that consultation engagement process. It was part of wider discussions but not specifically consulted on. There have been wider discussions on financial redress and what the appropriate way is to take that forward. There are many instances of different approaches, and each of those will be something that those who make submissions to the consultation will wish to bring forward, depending on what they see as being most appropriate in circumstances. I am sure that that will include submissions on the jersey model. Thank you very much. I want to turn to section 17C that is being inserted in the previous act, which is on previous litigation. In particular, to start off with a number of questions, we have heard as a committee that there is no precedent for legislating away final determinations, and that is what the bill seeks to do. Clearly, where we have a novel—I think that that word is not always a term of praise in those matters—a novel approach, we as a committee have to look at that very carefully. How has the Government satisfied itself that removing—allowing previous determinations to be reopened by a couple of mechanisms is not going to fall foul of ECHR legislation in particular? The member raises a very important question. That informs our approach to the bill as a whole, because, as I mentioned in the opening statement, we have had to, in this very complex area, strive to maintain this balance, which will allow us to fall on the right side of the ECHR and the article 1 provisions. With respect to the issue of previously litigated cases, we felt that not to include that as a possibility would create unfairness among different survivors. That is why we have included that, but we do recognise indeed that that is very much in contradiction to what has been accepted as the normal rules on finality. That is why we have drafted carefully, or sought to draft carefully, the relevant provision in section 17C such that it will, in fact, be for the pursuer in the first instance to show that they had the reasonable belief that there had been a settlement that was agreed further to the action falling on the ground of limitation. In the wider context, we believe that that is fair, because there was no substantive adjudication on the merits and that the case has fallen because of the application of the limitation rule. With the onus being on the pursuer in the first instance to reduce the reasonable belief test, we feel that we have recognised that that is indeed a departure from previous practice and that we have introduced the safeguard in that element of the process, as far as previously litigated cases are concerned. The minister is talking about the pursuer having to show that it falls within the provisions in particular of A and B, and in particular B to B. Use the phrase personal belief, is that an indication to us that omissions in the paper trail that might sustain this will not be a barrier to the personal belief being able to be demonstrated? In a civil court, in the balance of advantage, is that what the minister is seeking to say in using the phrase personal belief? I should correct the record that I meant to use the phrase reasonable belief. What one could do as a pursuer is, and we anticipate that that could involve a personal statement by the pursuer to the effect that they did hold a reasonable belief that the case did not proceed because it came up against the insurmountable hurdle of the limitation, application of the limitation period, and that could be by way of a personal statement. What we are doing in this bill is changing the limitation rule as far as it applies to this class of cases. We are not changing the laws of reparation cases in general, the laws of reparation and all the court processes and the way that the court deals with balancing evidence and satisfying itself as to the position with respect to the facts and circumstances of each case before it will pertain. Therefore, there may well be an issue of records, but there may well be other ways in which that can be overcome, and it will depend on the facts and circumstances of each case. Minister, that appears to confirm that if there were gaps in the paper record, that is not in general terms a barrier to a case being taken under the provisions of this bill. It would not preclude in all circumstances, no, because you would be able to take the statement of the pursuer to the effect that they had reasonable belief that the case had fallen on the grounds of the limitation period, and it would be up to the court as master of the facts, to assess the facts and circumstances of that case and any evidence that was adduced, or not as the case may be, to take the view that it would take. Obviously, if the pursuer makes this statement as to reasonable belief, it will be up to the defender to seek to rebut that in the way that he would with any claim and counter claim in the court. I am trying to explain that it would not be, to answer the member's question, an insurmountable barrier in all cases. It would depend on the facts and circumstances, and the final thing to reiterate is that this bill seeks to take away the obstacle to justice that has been identified in particular by survivors groups. It does not change the law of reparation in Scotland in other respects. Therefore, that is an important consideration to remember that the courts deal with very difficult issues of evidence, weighing up evidence on the balance of probabilities every day of the week, and they remain in place to do that with respect to those particular provisions of the limitation bill. I am sure that that is going to be very helpful and useful words to have on the record. The final point is on the issue of excluding from having access to the rights under this bill. Whenever even a single pound has previously been paid in compensation, it strikes me personally as a non-lawyer that that seems to be rather unjust, in particular in that people previously may have felt that they had no option but to settle, even though it was a new good to the amount that was being offered in compensation, because not to settle would simply be for the case that they were then engaging in not to proceed them for them, not to get the emotional justice that came from settlement. What consideration has been given to whether that limitation of even that tiny new goodry amount is that denying people justice in the terms, particularly on the case that I have used before, is where you have identical twins in identical circumstances, one of whom settled, including a pound and one of whom did not, now find themselves in a very different environment. What issues surround that particular decision that is captured at section 4, section 17C4B and section 5? That is a very difficult issue and one that I have a great deal of sympathy with. However, what we have tried to do, and that is what I was trying to emphasise in my opening statement, is to strike the balance between proceeding with what is a major change in the law of Scotland in terms of removal of the limitation period for this class of claim and that balance of the defender's rights and the finality of the law and legal certainty. We have sought and striven very, very hard to have this fine balance in the legislation in the bill and we feel that we therefore have to draw a dividing line somewhere and this is where the dividing line is drawn in terms of the provisions in the bill. I do sympathise, but what we are saying really is an effect that because in terms of including previously litigated cases, what we are saying is the key thing here is that there has been no substantive consideration of the merits and, in effect, no compensation payable. In a case where there has been no expenses due to or by or in a case where it has been expenses paid, that is not putting the pursuer in a better position even if marginal. That is the fundamental difference. We are not saying that all cases that had previously been litigated can be subject to the consideration of whether or not they can be looked at again. We are saying that those where there has been no substantive adjudication on the merits, those that have fallen because of the application of the limitation period, it is those cases that the victims, the pursuer, will be entitled to seek to have brought before the court and we do have to draw this line somewhere. In the evidence, I think, from memory, one of the people giving evidence was a lawyer who was active for defenders in some four or five hundred cases and they made the point, if I am remembering this correctly, that in their experience this scenario is not really very likely to have taken place in that there would have been no incentive for the defender to make even a nominal payment in excess of expenses and that, in most cases, in any event, there would have been settled on the basis of no expenses due to or by. Whilst I accept that it is not without any possibility that there could be some instance of this, the feeling on the part at least of this lawyer who had acted for hundreds of defenders, was that this actually is not something that would have happened as a matter of course in practice. Can I just finally, just because you raised something that I hadn't thought of, that is it not the case that there can be an initial action disposed of by the court in accordance with a relevant settlement but without evidence having been led? Therefore, you seem to suggest to me, as a layperson—I emphasise once again—that a settlement would only have been reached where a determination on the evidence has been reached. What I am trying to explain is that the previously litigated cases, the only ones that could potentially fall within the scope of the bill, would be ones that did not involve a substantive adjudication on the merits. That is the key point because the pursuer, the victim, did not get the opportunity of their day in court, if he liked to use that cliched phrase. He did not get the opportunity of that because there was no substantive adjudication on the merits. He did not get to that stage because the case fell at the hurdle of the limitation period applicability and that they were not able to persuade the court to exercise its discretion to lift the application of the three-year limitation period. In fact, I understand that there has been one instance where the court has so proceeded in the last 40 years. It shows that there has been, as a matter of practice, a barrier to access to justice in the part of the victims. I am going to have to read the official report because I am not entirely convinced by that. I reserve the right to pursue it further if I— Of course, and if the member wishes to write to me then. Indeed, I may do that to convener. Liam McArthur, follow-up. Good morning. I will come to the issue of the discretion open to the court under 17d, but specifically on 17c, the degree of dismissal and the degree of observator that was referred to previously dealt with cases. I think that some concern has been raised by a number of witnesses about what has been described as the innate conservatism of the judiciary in relation to the way in which it exercises its discretion now. Is there a view that you have, or is it borne out by the evidence that you have taken on extending the right in relation to the degree of observator, that gives you confidence that the judiciary would not simply take a view that anything that falls within that category simply will be dismissed out of hand? There were clearly more concerns from the witnesses that we have heard from on that aspect of 17c than there was particularly in relation to the degree of dismissal. I know that I have seen that that is the case and that there have been a number of questions on this point. I think that it is important to remember, and it is something that has been lost in this debate, that the decree of observator is not necessarily always going to be the appropriate decree simply where there has been a substantive consideration. Decree of observator can also happen in circumstances where there has been no substantive consideration. People's assumption is that the decree of observator will only come into play in circumstances where a case is disposed of further to a substantive consideration of the merits. That is not always the case. Therefore, again, that gets back to the facts and circumstances examination of the court before whom the action would be brought for consideration of removal of the time bar and they would have to look into the facts and circumstances. As I was trying to make clear to Mr Stevenson further to his questions, the key dividing line here is that if there has been a substantive consideration of the merits, you will not be able to use the bill to reopen the case because that would be an infringement of the ECHR that we could not find any justification for. It is cases where there has been no substantive consideration of the merits, whether set would by a decreed dismissal or decreed of observator, because it is competent to grant a decreed observator even where there has been no consideration of the merits. I think that came through in the evidence. I am thinking more that the inclination of courts in relation to the decree of observator may be that that has a particular significance that notwithstanding what you have said, they are more reluctant to reopen if you like. In effect, this will simply be dismissed notwithstanding the re-assurances that you have given. Yeah, Eleanor, could you maybe explain a bit more of the background and the work that we did on that? Yes, absolutely. I think that that is a very good point. I guess we cannot predict how the court will react in those cases. However, I guess that the bill creates a default position, which the intention for the default position is for those cases to be allowed to be reopened. Because that is the default position, the bill sets out a position where you would need to point to something quite specific and something that is above and beyond the default position for those cases not to go ahead. I guess the intention is for the courts to then interpret it in that way, that they would have to be something specific. As you have seen as well in the drafting of the bill, it is not just the possibility of prejudice. You have to point to something that is the real substantial prejudice or real evidence of there being not possible to have an unfair trial. While we completely recognise that there is a danger, we cannot predict it. I think that the bill still sets the level of what the default position is. Defenders would have to show something that is above and beyond that default position. I just look at this a little bit more, because it is one of the more probably contentious issues within the bill. We are looking here at substantive law. In effect, that overturns the legal principle of res judicata, which would be a legitimate expectation that such cases that had already been looked at, even if they had not been brought to trial but had been considered, would not be overturned. Now, I appreciate what the minister is saying. They may not have actually got their day in court, and the assumption is therefore that the decree of absolver to it would be overturned on the assumption or on the assertion that this was being done because it was going to be time barred. Instead of getting a degree of dismissal, the insurance companies were seeking absolver to make sure that it was not raised again. I have to say that, when we took evidence from the representatives of the insurance companies, they did not recognise that. I think that there was some concern about how the reasonable belief test would work in practice. So, what discussions have there been with the insurance companies? The two people that appeared before us, ABI and FOIL, did not recognise the scenario at all, but the minister says that it has been identified by some survivors. Could you perhaps elaborate on that a little bit? Well, the issue of there being insurmountable obstacles to a survivor's case going through to the next stage has been identified by survivors. The issue of the decree of absolver, I think that if it was called something else, it would not be causing this confusion, because I think that the element of the confusion to rise from the fact that people assume that a decree of absolver is only granted after there has been a substantive consideration of the merits. That is not the case. The decree of absolver— I am going to interrupt you there. The points that have been made to Liam, he has understood it. I think that the committee has understood it, but this is a particular niche, as I understand it, that the Government is legislating for. That is where the assumption or assertion is that the decree of absolver was granted and agreed to or sought by the insurance company and agreed to by the pursuer because they had no expectation of any other legal address because the case would be time barred. In essence, the expectation is that it was granted on the basis that the case could not proceed because of time bar. Instead of the disposal being by decreved dismissal, it was, for whatever reason, by decreved absolvator. It is a procedural point, but, as you rightly say, the underlying issue is that the case came to that point because the feeling was that it would not go through because of time bar. That is why we have included that, because it is a procedural point. If you are the person in the position who has not been able to pursue their claim because of the failure of the time bar, the limitation approach to those cases and the discretionary safeguard, which has not been involved more than on one occasion, so if you were pursuing that position, it would seem to you that it would be unfair not to include those cases as well, which have fallen on the same grounds, which is the application of the limitation rule. If those cases were not included, there would be a perception of unfairness to that group of claimants. That is why we have included that within those provisions, which, as I say, in terms of the previously litigated cases, the onus is on the pursuer to show the court that they had the reasonable belief that the settlement, be it by way of decreved dismissal, be it by way of decreved absolvator, but that the settlement that I arrived at was done on the basis that, in effect, Luke, you might as well just stop this because you are not going to get to the next stage because of the applicability of the limitation rule, and that is the underlying key principle. How can you possibly prove that, or are we just turning this entirely on its head and saying that any degree absolvator granted where the case would have been done, but it is automatically assumed to come under that provision? The underlying purpose here is to say to people who have not had access to justice because of the applicability of the limitation period, which, albeit, has a discretionary lift that has not been exercised for the group of claimants. I think that we have seen evidence in that effect, so it is to say to this group of claimants, well, okay, what can we do to ensure that you have access to justice? What we are doing is we are introducing this bill going forwards, we are introducing this bill with retrospective effect for cases after abuse, after 26 September 1964, and also we are allowing the consideration of whether it would be equitable in all the circumstances for previously litigated cases to be looked at again. In those circumstances, it is those cases that have fallen because of the limitation period, i.e. where there was a settlement, a reasonable belief on the part of the pursuer, which could be a personal statement in the court to that effect, that the case settled because of the limitation period, and that cases—to go back to Mr Stevenson's earlier point, where there has been no financial compensation received by the pursuer. Those are the key principles, and we felt that it would be unfair to exclude from that approach a limited set of cases that were settled with a decree of absolvator, which is a procedural decision rather than a decree of dismissal, because it is the same set of key facts, if you like, underlying that settlement, and that is why we have included that. Scott, do you want to come in with a legal clarification? I saw the previous evidence session where there was some discussion with the insurance company about the origin of how those cases ended up being absolved. From a policy point of view and the way that we have developed the bill, it does not quite matter exactly how they ended up being a decree of absolvator, because the point is that if there is a link between them being a decree of absolvator and the fact that they would have failed on limitation, it does not matter exactly what the process is and who proposed what, because the point is that they failed because of limitation. That is the clear link in terms of which cases should be allowed to go ahead. It is not any case, it is the one where you can show and demonstrate the link to failing on limitation. We have had discussions with insurance companies on a range of issues, but perhaps not on that particular point. The key thing is linking the failure of why you absolved to the fact that it was likely to be failed on limitation. That is a policy background. The reasonable belief test would be satisfied by a statement by the pursuer to the effect that was their belief. It would be in the end of the day a matter for the court, who is the master of the facts, to decide on the facts and circumstances of the case and the evidence being introduced before that court and what view that they took on that. Douglas Ross I have been trying to get in since it starts if I can go back a little bit to the choice of language from the minister in her opening remarks. She said that survivors have been let down by the justice system itself. Was that a criticism from the Scottish Government minister against judges not using this discretion? I think that it is a fair statement to say that the survivors have been let down by the justice system collectively. In terms of the legislation, judges can only deal with the legislation that is before them. The applicability of a limitation period is, in the end of the day, a matter of policy for the relevant Government of the day. It has the 73 act and the policy emanating from the 73 act. Those are the parameters in which they must proceed. That is the way in which they have proceeded. If you have a limitation period, that will be the norm, and there may be a provision for an exception, but the norm will be that you apply a limitation period. Other jurisdictions, for example, in Australia, the Royal Commission, which reported in 2015, took the view that it was not appropriate to have limitation periods applicable for this class of claimants. The Scottish Government agrees with that, because what you see is the creation of an inbuilt resistance to those cases that are actually proceeding, and I think that that is what we have seen. The judges acted within the legislation that is applicable, which is the 1973 act. It is a criticism from you that they were let down by the justice system itself. That was the words that I wrote down. The fact that you have cited only one case where the discretion was used, why had it not been used? You said that they have had this power. It is not as if they had no powers at all, so why had that discretion not been used and why now in 2017 have you been forced to come forward with this legislation? As I say, if you have a limitation period applicable to in this instance, this class of cases, then there will be the application of that limitation period in terms of the exercise by the judges of the discretion. That is a matter, obviously, for judges, but they have to operate within the policy provisions emanating from the piece of legislation in hand, and that is the 1973 act. I and the Government believe that this is a unique set of circumstances that these cases present. The nature of the abuses—we all agree—absolutely abhorrent. The position of the victim is the incredible vulnerability of the victim because they are a child at the time. We also have seen, through various studies over the years, the effect of abuse on children. It is this all-encompassing effect on children, the silencing effect, the fact that we have seen in some studies where the average period of time cited for victims coming forward could be some 22 years. In all the circumstances, we feel that a limitation period in and of itself is not appropriate and will cause problems for people accessing justice in those circumstances, because, as I say, it creates an in-built resistance to those cases that are actually proceeding. That is why we are bringing forward the legislation that is before the committee today. I am just not getting from you what I was hoping to in terms of what has been done up until this point to see if the judges required further clarification to their powers. If they required further powers, you are taking forward legislation now, which is quite an overt step to overcome those problems, but, since 1973, we have had one example of the discretion being used. What action had the Scottish Government taken in the intervening periods in your 10 years in office for your party, since devolution and so on to overcome the problem, which was clearly apparent if it had only been used once in over 30 years? The Scottish National Party and Government have been proceeding with a number of steps since we took office in terms of ensuring that, for survivors, they get the support that they should have been having years ago. That includes with respect to access to a remedy in court and includes many other strands that are referred to. For example, work has gone on apiece by the Scottish Human Rights Commission. I am sure that the member is aware of that and the report. The Scottish Law Commission has looked at the issue of the limitation period. Its conclusion was that, if there were problems, one could seek to go down the discretionary guidance route. However, for the reasons that I have stated, I do not feel that that will lead to a meaningful, significant solution to the problem that is averted particularly by survivors. As I say, the existence of a limitation period in and of itself creates an inbuilt resistance to those cases proceeding. That is why I believe that we have to remove the limitation period for this unique class of claimants. I go on to something that you said in your previous answer that legislation is important because of the vulnerability of the victim because they were a child at the time. Is it right that, for example, a 19-year-old with a mental age of under 18 should be exempt from that limitation? In terms of the general limitation rules, they do not apply while there is a period of unsignness of mind. The limitation period does not run while there is a period of unsignness of mind, so that is to deal with that issue. Just for clarity on that, is that for them to bring forward a claim or if they were a mental age when they were abused? That is the point that I am trying to get to. The time limit does not apply to, in any case, does not run during the period of time where, for example, you were not aware of the harm suffered of industrial disease, for example, but with respect to the specific issue of unsignness of mind, it does not run during the period of unsignness of mind. The limitation period does not run during that period, so that is the position as of the current time. With regard to the definition of a child under the legislation, we have thought about that carefully, but we took the view that the prevailing definition, if we look at the Children's Scotland Act 1995, if we look at the UN Convention on the Rights of the Child, is 18, and we did feel that because of the nature of the impact of abuse on a child that, to exclude 16 and 17-year-olds, was not appropriate in the circumstances. Sorry, that is not my question. What I am saying is that, if you have someone who is 19 or 20 or 30, but at the time they were abused, they had a mental age of under 18, so they were effectively a child and that could be diagnosed and could be confirmed, they will not be able to use this legislation to bring forward a claim despite the fact that their vulnerability of having a mental age of under 18, which is something that you have said twice now in your evidence, is a key driver to bringing this forward. They would not be able to use this because their actual age is above 18 despite their mental age being below 18 and, therefore, they are vulnerable. It is deemed to be a vulnerable adult, but, as I say, the limitation period does not apply during the period of unsoundness of mind, and perhaps I could clarify in terms of the position for any carer or guardian or whatever to intervene on their behalf. The concept of a mental age as a child sounds similar to the kind of lacking capacity to attend to your affairs, which is the concept of unsoundness of mind. Although our bill would not be relevant, but the limitation period would not apply to them under section 17.3 of the current regime. If you have a mental age of a child and you lack capacity to deal with your own affairs, you are exempt anyway from the limitation period. Yes, but you could progress with your mental age. You do not maintain that mental age of a child indefinitely in some cases. Therefore, the point that I am trying to get at is that a group of people who have a mental age of under 18 and are abused because they are vulnerable because of that, or were abused years ago, perhaps want to bring a claim themselves. If they do that, people would say that they are not included in the limitations because they have the ability to bring forward a claim themselves. You are saying that, under that legislation, they would not be able to bring forward that claim because the age in which they were abused, their physical age, was above 18. However, they may now have the mental capacity to bring forward a claim, but they would not be allowed to under that legislation. It is to do with vulnerable adults and unsoundness of mind that the definition of a child is the definition of a child, and that is the legal definition. However, as Eleanor said, the limitation period does not apply during periods of unsoundness of mind. If that person did recover their mental capacity, the limitation period would run from the time in which they recovered their mental capacity. Like Mr Stevenson, I will reserve my right to come back to that issue. I ask the minister's opening remarks. She said that the aims of the bill could be threatened if we upset the balance. Could you explain that further, what you were alluding to with that? I have tried to come back to that fundamental principle in my subsequent answers to members' questions thus far this morning. That is to say that we do recognise that this is a major departure from the Scots law principles thus far. I have set out why I feel that, in the circumstances that this is justifiable, this is a unique set of circumstances for this class of claimants, I feel that it is there for pursuing a legitimate aim. I do feel that what we are proposing is proportionate. I do feel that we have looked at other possible routes but found them wanting in different regards. We have conducted the human rights convention test in advance to try to prove that legislation. Therefore, I feel that the balance that we have struck between recognising that this is a major departure from the hitherto established principles of Scots law but recognising the legitimate policy aims that underpin the legislation but also recognising the position of the defender. The careful drafting of the provisions tried to strike this balance. It is this balance that we feel that it is very important that we will ensure the integrity of the bill should there be any subsequent attempts to undermine that. We feel that this balance is carefully crafted, one element versus the other, the different strands of the bill. That is the point that I was trying to make. My final couple of points, if we can move on to some of the other evidence. I will come back to you, Douglas Scott, because there are follow-ups from the line of questioning that you were pursuing, Fulton. That is going to be a short point. Douglas Rossi's earlier line of questioning. I am just wondering around the whole area of why the legislation has been brought forward now. I am just wondering if the minister would agree that the reason that the Scottish Government is bringing forward the legislations now is at least in part due to the significant change in social attitudes towards this type of abusive high-profile cases that have been in the media work of survivors groups. In a breakdown of the taboo and the social attitude around it, I wonder if the minister believes that the Scottish Government is responding to that. I think that we all agree that it is the right thing to do for survivors. I tried to list a number of actions that have been taken since the late 27, 8, 9, 10 human rights commissions involving the interaction process, a very important process. Survivors feeling that they would get a hearing that they would be listened to. Of course, I would imagine that it reflects other developments in society at large and that they feel now that it is the time that they can make some progress. I pay all credit to them because it is a very difficult thing. I think that we all appreciate for them to make their views known and to lobby on the subject. I think that we all want to work with them. I think that there have been a number of different developments over the years, and I think that that has led to the absolute right time that we should get on and take away that obstacle for survivors to access justice. As I have said, it is not a panacea. I think that you have heard evidence that you still have to go through the normal court processes in terms of reparation and all the rest of it. I think that, by this legislation, we at least remove one barrier. I think that that is important to ensure that survivors who have called for this feel that they are being listened to in this regard. I just wanted to get clarity. In section 17 of the 1973 act, point 3, it says, in computation of the period, legal disability by reason of non-age or unsunness of mind is to be disregarded. Therefore, the category of people that we have been talking about have already got the rights to set the normal limitations to one side. The bill is about creating that right for a new class of people and is not required for people who, by reason of non-age or unsunness, already have such a right. To be brief, I can see the convener is keen to keep to her schedule. In brief, that is the position. For people in those categories, the limitation period, the clock is stopped and does not start again until capacity or until you are not in the position of non-age. With respect to survivors of historic abuse, we have seen that they simply cannot progress because of the limitations that are built into this limitation period, the inbuilt resistance to cases proceeding. That is what we need to tackle and that is what this legislation is designed to do. Right, Douglas, you have one other line of question before we have to marry Rona, Mary, John, so could you be brief please? Yes. What is your prediction on the numbers coming forward? As a committee, we have seen a variety of different figures quoted some significantly lower, some significantly higher. Given those numbers, which you will hopefully give the committee your best estimate, do you think that the court system is adequately equipped to process those claims in a timurious manner for the people who want justice as soon as possible? Yes. I would refer the member to the financial memorandum that is part of the committee papers, and we have tried to come up with a best estimate indicator figure, and the methodology is set quite clearly in the financial memorandum. The mid figure that we have come up with is 2,200. Of course, nobody knows if that is going to be the exact figure or not, if it is going to be higher, if it is going to be lower. I think that the evidence before the committee has shown that we are simply not in a position to scientifically determine the exact figures involved. It is also fair to say that, for many survivors, this route is not the route that will be right for them, and that is a matter of individual choice and informed choice. It would be absolutely wrong of me as a minister to suggest that anybody should take a particular course of action. That is entirely for the survivors, so it may well be that, in terms of figures that other people have quoted, they are not taking into account the fact that this will not be the route that every survivor chooses to go down. We have made a best estimate effort to come up with a figure, and that is the figure that the 2,200 referred to in the financial memorandum. With respect to the member's question about the court system, I think that it is important to state also that we do not expect all of these cases to be raised simultaneously. We do not expect them all to be raised in the same court. We do not expect all the cases to proceed at the same rate. There will be different issues and different disposals at different times. Again, in the financial memo, we set out what we felt was a reasonable estimate in terms of the Scottish Courts and Tribunals Service and the impact on them and their business. I would refer the member to the financial memo for the detail of that, because there were different cost estimates applied to each of five years, because we felt that that was a reasonable period of time to consider. The final point that I would make is that we will always be in touch with the Scottish Courts and Tribunals Service, and I am sure that they will not hesitate to alert us to any particular issues that may arise. In terms of normal budgetary considerations, we will keep those matters under advisement. That is useful to get on the record. Clearly, we have read the financial memorandum, which you have said has come to a mid-point figure of about 2,200, yet our evidence suggests that there is one Glasgow law firm that has 1,000 survivors on their list alone, one firm in Glasgow, who are ready to bring forward action should there be a change in law. The 2,200 figure quoted by the Government seems slightly low, considering that there is one law firm that has half of that ready to go if there is a change in law. However, the final point that the minister made is that she will listen to any concerns coming from the Scottish Courts and Tribunals Service. I presume that that means that, if the bill is passed and the legislation is implemented, if survivors start to come to MSPs, start to come to this committee to say, we were given these reassurances, we have waited a long time for this legislation, if they start to feel that they are not being seen quickly enough, if the justice system is not treating them as a priority, we can take from the Cabinet Minister for Community Safety that the Government will use favourably any request for increased funding to meet the needs of a more burdened court system because of that. We always keep under advisement what is going on in our courts. I would also point out to the member that, in terms of the one direct impact on the Scottish Courts and Tribunals Service concerns that it should have fees, we have moved to 100 per cent full-cost recovery, and that should be borne in mind in terms of looking at any financial impact on the Scottish Courts and Tribunals Service in terms of their own resources. We do expect that we will see actions raised in various sheriff courts, not just in the new person injury court. The court of session is an option, of course, for cases over a particular threshold. We do not, as I say, anticipate that all potential victims will choose this route because, for them, it is up to them absolutely to decide what is the most appropriate way in which they wish to proceed. I would not prejudge that for a second. So we have come up with the best estimates figure and, of course, we will continue very closely to monitor the situation as it goes forward. Finally, on funding, do you think that local authorities and third sector organisations have adequate resources to meet the burden that they will face in terms of investigating and defending any of those claims made against them? Of course, I have seen representations from COSLA to the committee. Of course, again, I think that it is clear that, at this point in time, nobody can say definitively what the impact will be across the piece. I think that we again keep on these matters under advisement. I would confirm to the committee that we have been discussing matters with COSLA, officials met with COSLA last week or just thereby. I am shortly to meet with the spokesperson on children and young people. I would say that I did through officials offer to meet with COSLA last autumn, but that did not get picked up. I am happy to meet with them, officials continue to meet, and we will keep this matter carefully under advisement. At this stage, I think that it is a bit premature to discuss any particular figures, because nobody knows, and I think that we have to wait and see what the figures are. We can take some comfort. We could say quite clearly that the issues raised by COSLA are being addressed by the Scottish Government. We are certainly in conversation with COSLA, but we have to see what happens. For some councils, of course, there may not be any particular impact at all. I would say that there are so many variables in the evidence that has been given to the committee. We are not in a position to bring out a crystal ball today, but we, as a responsible Government, will continue to engage with COSLA and, of course, those discussions will continue during the passage of the bill and, hopefully, if the bill passes thereafter. Mary Fee, I have a brief supplementary question. It follows on the back of the last question that Douglas Ross asked. It is about support, because not only could there be a potential burden on local authorities, but the support services that victims use may require additional support. What we do not want is to be in a position where people come forward after waiting years and years. They may well have been supported, but they may need additional support. Is there enough flexibility? Are you alive enough to ensure that the correct supports are put in place around people as their cases may come to court? I think that that is a very important question. Obviously, there is the in-care survivor support fund—I think that it is the future pathway fund—and there is funding available under that heading for a number of activities. I think that it is important that we ensure that the court system will be in terms of looking at the issue from the perspective of a survivor and the support that they may need in terms of, for example, giving evidence as a valuable witness or whatever, that that is well recognised and that we understand that we have been in discussions with the Scottish Court and Tribunal Service in broad brush on issues of support at court. We have also had discussions with the Law Society of Scotland to see, for example, whether it could instigate specialist training for lawyers or perhaps even set up a specialist accreditation for this area of work. Therefore, we are very mindful of the point that Meneffy raises, because, as you rightly say, as Meneffy rightly says, it would be a very empty gesture indeed to provide the possibility of a legal remedy on the one hand but, on the other hand, not to recognise that there are very serious practical issues involved in this as well. I want to go back to what you mentioned earlier about the definition of child in the bill. It was really to talk about some of the key definitions that we have. From asking some of the other panels that we have had, I think that everybody was in general agreement about the definition of child, but there was a lot of discussion over the definition of abuse as it currently sits in the bill. It was really just to hear your comments in terms of some of the evidence that we have heard. We have heard from some groups that they thought that it should be more prescriptive in how it is described. Others welcomed the fact that it could be interpreted more broadly. For example, one definition that was raised by the Scottish Human Rights Commission was that of neglect, and they asked that that be specifically mentioned. It was just really to get your comments on that. Is that something that you would consider inserting into that definition? Okay. The issue of definition, I have noted a number of the submissions made on that point. Again, this goes back to the first principles of the balance of the act and the delicate balance that we have sought to arrive at. Of course, some people have said that the definition is too wide and some people have said that it is too narrow. We have tried to get to some place that is going to protect the integrity of the bill by not taking it too far away from what the core principles for this are to justify us taking this action in the first place. In terms of the issue of emotional abuse and the way that we have drafted this, so that this is an inclusive list—sexual, physical and emotional abuses are an inclusive list and not a definitive list. We feel that that is important because, of course, we cannot begin to imagine all the forms of abuse that these people have suffered at the hands of the perpetrators. We just cannot begin to imagine all the kinds of abuse that could be viewed as the representation of this heinous, abhorrent harm. Therefore, I feel that we have to have this approach that we let the Scottish Human Rights Commission say that the Scottish courts are well placed to make those assessments. They make assessments every day of the week and they are well placed to do that. The issue of emotional abuse is important to recall that, in terms of existing legislation in Scotland—for example, the matchmore new homes family proceeding Scotland Act dating back to 1981—includes also the possibility of mental injury. I think that, again, the courts have had a considerable period of time to get to groups with that. I feel quite confident that we have got the balance right. On the important issue of neglect, that was in the draft bill that we consulted upon. The comments that we got back, many of them suggested that that could take us too wide. That could lead to unintended consequences. In my view, the definition as it stands does not per se exclude neglect, but it would only include neglect that was not negligent but amounted to this abusive behaviour. That, again, would be the court that would make that assessment. I feel that we have got the balance right. Obviously, I have looked at the evidence submitted and I will read the committee's stage 1 report with interest on the subject. Thank you. It was just on that point that I neglected because, certainly from the Scottish Human Rights Commission, when it spoke to the committee, it has quite a clear definition in itself. I understand what you are saying about how emotional abuse can encapsulate a lot of the other types of abuse that were mentioned. That was certainly recognised by some of the other submissions that we had as well. For example, we also had the term spiritual abuse raised and psychological abuse. It was just to hear what you think about that. Is that something that you consider falls under that emotional abuse but should be left as it is, or is that something that you would consider including? I would take the view that it was the Law Society of Scotland and its evidence and the Scottish Human Rights Commission and they both took the view that, on the issue of spiritual abuse, which is a very interesting discussion, a non-defined concept, but an interesting discussion nonetheless, that could fall within emotional abuse. In terms of psychological abuse and psychological harm, I feel that that most certainly could fall within the definition of emotional abuse. I have cited the Matrimonial Homes Act 1981, where mental injury is a feature. I feel that the courts are, really, as masters of the facts, well able and the Scottish Human Rights Commission recognised that to make these determinations to get to the key issue here, which is justifying this departure from the normal law of Scotland in this instance, which is the abuses of such a heinous nature as perpetrated on somebody who was an incredibly vulnerable person, a child, and that the effect of that abuse, which has been well documented, means that you will not necessarily be in a position for years and years and years, even to acknowledge that the abuse has happened. It is that level of seriousness that we are trying to get at, but, again, we do not want to be too prescriptive because we cannot imagine, I do not think, all the possible kinds of harm that could have been perpetrated, including, for example, on the neglect side, children being told that nobody wanted them. We do not know all the kinds of heinous behaviour that could have gone on, and we have to have a definition that does not close off or shut down a survivor's possible access to justice. I think that we have the balance right, but I will obviously look carefully at all the committee's deliberations on that point. I think that that is very much appreciated by the committee, because there was a feeling when we took evidence that emotional didn't quite cover the spiritual aspect, where there was an indoctrination, and it went a little bit further, almost on to the psychological, and perhaps neglect could come under that too, that there may be a case for having that on the face of the bill. I think that the committee very much welcomes the minister's open mind on that particular aspect. I wonder if I could raise the issue of relevant settlements and just ask for a bit of clarification. The Forum of Insurance Lawyers has said that the burden of proving that there is a relevant settlement for the purposes of section 17c would rest with the person raising the action while the law society thought it rests with the defender. I am just wondering who is right in your opinion, and do you think that that needs to be clarified within the legislation? As I said earlier, I think that it is quite clear that the possibility for the court to look at previously litigated cases—the issue where a settlement will come into place—is for the pursuer in the first instance to show that they have the reasonable belief that the previous action settled on the basis of the applicability of the limitation period. That is quite clear. I did note that the law society seemed to have a question, but I was a bit curious as to why it did, because it seemed to me quite clear on the face of the bill that that is where the onus would lie as regards that issue. However, stating again for the record that, as the pursuer, they have to show that they have held a reasonable belief that they could do that by, for example, giving a personal statement. Of course, it would be up to the defender to seek to rebut that, and that would again get you back into the normal rules of operation of the court in terms of the balancing of evidence. However, in the first instance, it would certainly be for the pursuer, because that is yet again a major departure, if you like, from the applicable civil law of Scotland. We have to be mindful of that as far as the application of the European convention rights, et cetera. I was confused, too, as a layperson, about why the law society thought that it would rest with the defender, because that seems to turn the system around in its head. You cannot offer any reason why they would have thought that. I imagine that the committee might wish to seek clarification from the law society in that point, and I would read that clarification with interest. I am fairly clear that it would, in the first instance, rest in the pursuer. However, with that explanation, I believe that a personal statement by the pursuer to adduce that they held that reasonable belief would be something that would be possible for the pursuer to do. We heard in evidence calls, and a couple of other people who came to talk to the committee gave us a suggestion that a specialist hub of the personal injury court would perhaps be the best place to hear those cases. I would be interested in your thoughts on that. I noted that. That can have attractions in that there is a specialism that is built up. On the other hand, if you are playing devil's advocate, you might argue that a specialism might lead to non-innovation if you had it just before your average share of court. It might have a different fresh eye to it, but I accept that there are lots of arguments in favour of having specialisms as to the decision making on the issue that would be a matter for the Lord President to designate such courts. I feel fairly confident that the Scottish Courts and Tribunals Service will be looking very closely at the official records of this committee in terms of the points made that have application to the Scottish Courts and Tribunals Service. We would, at the end of the day, be a matter for the Lord President. I would just make the point that, in terms of the new personal injury of Scotland court, it is not the case—I think that it was the ABI who suggested that all actions would have to be brought there. That is not the case. Actions can be brought in any share of court in Scotland. Indeed, in the court of session, should the threshold be reached in terms of the quantum, that is important to bear in mind. However, on balance, specialisms are not helpful, but this would be a matter for the Lord President to designate such a court. Given the comments that you made in an earlier question to me about giving additional support and training to lawyers and solicitors in courts, there might be some advantages to that. I suppose that we have no idea how many cases are going to come forward. We have no idea of the burden on courts. It might be the case that specialist hubs might be beneficial in dealing with the cases as we go forward. It might be. Again, as I say, I feel fairly confident that the Scottish Courts and Tribunals Service will be looking closely at the work of this committee on this bill and will be reflecting on suggestions that come forward. I would not like to abrogate the rights of the Lord President to decide what happens in the court system because I might get into trouble. I do not know who the minister is, but it is important to point out that it would be for the Lord President. However, I know what the member says on that point. Liam McArthur I take you back to the issue of the court's discretion that we touched on earlier in relation to the questions around 17C. In terms of 17D, there are still a couple of instances where court would have discretion to reject a case where it was not likely to be a prospect of fair hearing or the retrospective application of the law could result in substantial prejudice. You will have seen from the evidence that we have received that a number of witnesses expressed some concern that, with a lack of guidance or clarity around how that discretion might be exercised, there was a possibility with, as I said earlier, a more small C conservative approach by the judiciary to use that discretionary power in effect to apply the time bar by other means. Is that a concern that you recognise that comes through from the discussions that you and your officials had with witnesses? What consideration was given to whether there are not more guidance around how discretionary powers might be applied could be beneficial in allaying those fears? The section 17D substantial prejudice test brings us back to the onus following on the defender to show that proceeding would be of substantial prejudice, not just theoretical prejudice that might be likely, as Eleanor O pointed out, but rather that there would be substantial prejudice and that, furthermore, in the consideration of that, the court must balance that with the pursuer's interest in proceeding. It is only after that further balancing consideration is made that, in terms of, presumably, the gravity of the substantial prejudice that they would find in favour of the defender and that the action should not indeed proceed. That, again, has been included after very careful consideration to reflect the delicate balance that we need to strike in the drafting of the legislation to ensure that we feel that we have the best chance possible to defend the integrity of the bill should there be any subsequent attempt to undermine the bill. We feel that, including the mechanism on the face of the bill—the fair hearing, which applies anyway, but including the fair hearing test and the substantial prejudice test—we have reflected the balance where we need to recognise the defender's interest in legal certainty and finality of the law. We have recognised that through the mechanism on the face of the bill and that we would have the court so proceed. That would be the test on the face of the bill, so it would not be something that the courts could ignore. That would be the test that would be set. Clearly, in this mechanism and setting a mechanism, we feel is actually very helpful for all concerned—for the integrity of the bill, but also for the courts and for the defender. I think that you yourself quoted the faculty advocates earlier in suggesting that the bill provides a reboot and that the expectation of the faculty certainly was that you would see a changing approach because of that switch in terms of where the balance currently lies. Nevertheless, is there scope? Should that not be the case? Should the future case law suggest that, in a sense, access to justice is still being denied because of the way that the discussion of power has been applied, is there an opportunity to provide further guidance around that time to reinforce the central message of the other situation? I think that there are different views about whether we should be amplifying that on the face of the bill. One view, I guess, is that it may provide further clarity. Another view is that this could cause confusion because what is the guidance to be? There are so many possibilities here of substantial prejudice that we may be, if we set forth only some of those, even if it is a non-exhaustive list, nonetheless be setting off, if you like, red herrings that the court will go down into the exclusion, perhaps, of consideration of other matters. I am not really convinced that setting forth any particular non-exhaustive list of guidance here would necessarily be helpful from the perspective of the integrity of the bill and, in fact, even the defender's interests on the issue that you raise off. Whether that is changing the balance so much that it will be the case that this will be a test that will always be met and therefore to the detriment of the interests of the victim overcoming this obstacle to get their case in court. Again, I would say that this has been crafted very carefully to ensure that we are demonstrating, that we are seeking to meet the test, if you like, of restrictions on ECHR rights, on article 1 protocol 1 rights, by looking at the legitimacy of the aim of the legislation, looking at the proportionate nature of what we are setting forth and looking at whether there were any other alternatives. In terms of the proportionality, we feel that this mechanism on the face of the bill is proportionate in light of the considerations of the integrity of the bill. It is. This area is full of very difficult challenges and we do feel that we have struck the right balance here. It will be the court in the end of the day that will have to make this consideration. The onus will be, importantly, on the defender to show that this is substantial prejudice, not theoretical, not that prejudice may be likely but that they would suffer substantial prejudice, and there must be then a further balancing of that even if proven with the pursuer's rights to proceed with the action. We feel in all circumstances that we have embedded within this mechanism on the face of the bill this balancing of the respective rights of the pursuer and the defender. In terms of the exercising of that judgment, we have heard some concerns from the representatives of the personal injury lawyers that, in a sense, that determination occurs at the very end of proceedings. There are those who believe that it should happen right at the outset, in a sense. One can see the benefits all round for it happening earlier on in the process, in terms of reducing the impact on the individuals involved and reducing the cost in terms of taking forward the proceedings that ultimately fall due to the exercise of that discussion. What is your understanding of where that judgment around prejudice and affairs hearing is likely to happen? I want to say to the member that at the present time, in terms of consideration of the applicability of the limitation rule in any exercise of discretion, that does not always happen at the beginning. That consideration is a matter for the court in the instant case, so that consideration can happen further down the line. It would be the same for the substantial prejudice test. It would be a matter for the court to make the determination at the point at which, in the instant case, it felt that it was most appropriate to do so. In terms of the balance of cases, one would expect more to happen later on in the process than at the preliminary years. That is a very difficult question to answer unless I am missing some of that. I suppose that, in terms of the financial memorandum, it is material and later in the process this happens. Obviously, the financial implications in terms of the adrenal service and notwithstanding your point about full-cost recovery are going to be higher. Some sort of judgment must be made about where it is reasonable to expect that judgment to be exercised in the majority of cases. The short answer is that it would be for the court. Obviously, those are very difficult issues for the court to determine in terms of fair trial and substantial prejudice. It might be for a particular case that it is not until you have heard all the evidence that you know which evidence is relevant. As an example could be if a witness would have died and the defender claims that it is an unfair trial because a witness would have died, but if the evidence shows that that witness is actually not relevant, that perhaps would not be an unfair trial. There could be cases where you need the full picture of the evidence to be able to determine what is fair or not or the level of substantial prejudice, but it would be for the court. I appreciate that, but I think back to maybe one of the points that Douglas Ross was raising earlier about the expectation management of survivors who many of whom have gone through a fairly tortuous process, even to be at the point where they feel they may be able to take forward a case. The longer that case proceeds before there is a ruling on whether or not there is substantial prejudice, the more damaging it could be if, ultimately, that discretion is exercising the way that to them appears no different from the exercising of the time bar, the limitation on time bar at the moment. The difficulty, though, in providing any sort of derogious guidance, would be that, actually, as Eleanor has pointed out, it is wrapped up in the facts and circumstances of each case and you could make a call, which would not be helpful perhaps to the pursuer in a particular case, so I think that we do have to recognise that the courts are master of the facts and we are not changing the whole law of delict and how courts go about reparation cases. We are seeking to change the applicability of the limitation period and the balancing that we feel we have to conduct within that process. It would be very difficult to come up with a rule that would be appropriate in each case, because, in each case, the instant case will determine at which point that those considerations are most relevant and that, I feel, we have to leave in the hands of the courts who are masters of the facts. Minister, in your opening statement, at various points, as you have been giving evidence, you have made it crystal clear that court action is not going to be for every survivor. You listed some of the things in the policy memorandum, the child abuse inquiry, the survivor support fund and the national confidential forum. However, you admitted to refer to the Apology Act, which some of the survivors had suggested would be a remedy that some people would choose as opposed to court action. That, as you know, was granted royal assent on February last year. The expectation was that it would be enacted by commencement in six months' time. That was under your previous session. Could you maybe advise the committee where we are now with the act? The committee will be privy to some of this information because we have been in discussion in terms of implementing regulations surrounding the Apologies Act. What arose during the passage of the Apologies Act, which was my predecessor, was Mr Paul Wheelhouse, who took that bill through that stage. Further to representations received, it became clear that, for some bodies, the processes of the bill were not appropriate and that they wanted to be accepted. A commitment was made by Mr Wheelhouse at stage 3 of that bill that would indeed be proceeded with. It is the proceeding with that has brought up other issues because other bodies have come forward to say that they are in the same position. Those discussions have involved other bodies who have made that point. We had been in discussion with the convener, given the convener's direct interest in the matter. We were not able to reach agreement on the best way forward, but we feel that we have an obligation further to the commitment to Parliament that Mr Wheelhouse made and the good faith discussions that we have had with those other regulatory bodies that we must proceed in good faith and act on our commitment to Parliament. We hope to bring forward those regulations shortly and those will come to the committee. I am sure that there will be a full discussion and I am happy to come back to the committee at that time to answer any questions that the committee may have. If I could just press the minister on this, the commitment from the previous minister was to look at health regulators. Seeking clarification from the cabinet secretary now for other tower discussions, I have in front of me a letter that says that he is pleased that the passing of the act meets the recommendations of the Scottish Rite Commission in their action plan for justice for victims of historic abuse of children and care and gives merit to the apology law in full. He then goes on to say that a commitment was made to Parliament to ensure that no unintended consequences for health regulators would be something that was the result of the bill being passed. Can I seek confirmation that the further regulators that you are talking about are merely the health regulators? Those were excluded from the provisions of the act because of the duty of candor. Can I seek that assurance today? The exclusion is not on the duty of candor, but the member will be aware further to our discussions on the matter that, in the course of those discussions about the health regulators that would be in the same position as the two specifically referred to at the outset being the GMC and the NMC, other health regulators came forward. In addition to that, there are two other regulatory bodies that have come forward to say that they are in the same position and to treat in good faith that we must recognise. We will be bringing forward regulations that reflect those good faith discussions that we have had and that we are required as a responsible Government to have. We will be bringing forward those regulations. We hope quite soon that the Justice Committee will want to have a discussion. As the member will be aware from our previous discussions, the teachers council and the social services council are the ones that we discussed in our meeting. That is good to get on record and perhaps to pursue further for another day. John Finnie. Thank you, convener. The committee has not been part of these discussions and obviously we look forward to this coming forward. Are you able to say the extent to which, if at all, it will impact on the issue that we are dealing with here, the historic abuse? Because what we have heard is that people do welcome the opportunity to receive an apology and not everyone wants to go to litigation. The specifics are to deal with the particular procedures of, from memory now, eight health professional bodies and their procedures and the two additional non-health bodies, so there are ten in total. It will not impact on the civil remedy to be provided through this legislation. It is not really caught up with the duty of candor and it is difficult, as the member says, because the member has not been involved in these discussions, I think three discussions that I have had with the convener on this subject. But he can rest assured that the issues raised in the limitation childhood abuse bill are separate from these discussions. For another day, minister. In the meantime, can I thank you and your officials for presenting today and for this worthwhile evidence session and I suspend to allow the minister, our officials to leave and for witnesses for the next item to take their seats. We will have a five minute suspension. Agenda item seven is our second evidence session on the railway policing Scotland bill and I refer members to paper seven, which is a note by the clerk in paper eight, which is a spice paper. I welcome to the committee today the panel before us, which is comprised of Nigel Goodband, national chairman, British transport police federation, chief superintendent John McBride, British transport police superintendent's association branch, Michael Hogg, regional organiser, national union of rail maritime and transport workers, Callum Steele, general secretary of the Scottish police federation and Alistair Burnett, staff representative, transport salaried staff association. We will go straight to questions from members. Douglas Ross. Can I first ask the federation? You state that you sincerely hope the views of those most affected by the integration of BTP in Scotland, in the police Scotland, namely the officers, will be given due consideration in the final decision for integration. Do you think that that is happening at this stage? Are you concerned that the consultation on the proposals from the Smith commission to devolve powers of BTP to the Scottish Parliament only focused on one area, i.e. taking BTP into police Scotland rather than other options that were available? I noted on page nine of your submission that you said that it was more about engagement but not consultation, so could you elaborate further on that? As a federation, we believe right from the outset that the question being asked by the Scottish Government was how best to integrate BTP into police Scotland. The question wasn't should it or shouldn't it happen. There were a number of options put by the British Transport Police Authority, and clearly in our opinion the Scottish Government dismissed all options bar one, which is total integration. What we've seen so far from the process that we've been involved with is no evidence that supports any benefit or indeed that the Smith commission itself recommended full integration. Yes, it recommended that it should be a devolved issue, but there were no recommendations for it to be submerging BTP into police Scotland, and that was very concerning from our perspective. We feel right from the outset that there wasn't acknowledgement of what our views were, what the views of the police officers that we represent were, because the simple decision is that it is only one option and one option of full integration. I will go further into your submission to the committee, and I am particularly looking at the command and control element that you have. If you could explain how that seems to operate very well at the moment. Last week, the Parliament was presented with a report from Audit Scotland into the failed I6 project for Police Scotland, which is all about IT systems for the single police force. That £46 million project concluded that our officers in Scotland are currently still using out-of-date, inefficient and poorly integrated systems. What concerns does that give you as a federation and perhaps some of the other people on the panel about the BTP coming into a force that currently has such an antiquated and potentially dangerous system that is not working for our officers currently? I can only comment on what the British Transport Police have in place at the moment. That is one seamless command and control system. It has one crime recording system and a reporting line through the train drivers and the victims. The process that is there now works. It is successful. Yes, there has been teething problems with the introduction of the new niche that has been implemented within BTP. That is a positive from our position that niche is a better command and control system that we have had previously. It is working. It has proven to work. Yes, there are concerns when you read within the media regarding the failure of the I6 project within Police Scotland. It draws concern that you possibly will have two command and control systems potentially deciding between the two where does the victim sit? Did the victim get on a train in London but then suddenly report a crime in Scotland and then there is this debate of where did the crime occur? Was it in England, was it in Scotland and it could throw in unnecessary difficulties in your mind? I would like to thank the committee for this opportunity to share the views of the BTP branch of the Superintendents Association. Having one joined up command and control system, whether it is in Police Scotland or the Legacy Forces or in BTP, as an operational commander and a senior leader, it is an imperative in railway policing, absolutely. If I could just give you an operational example, we are preparing right now our plans for the forthcoming world cup qualifier, Scotland versus England. In a BT context, as is just now, being able to see fans and train loadings, whatever those fans might get on, whether it is in Birmingham, Manchester, Aberdeen, Inverness for all the fans that will travel, as an operational commander, is really important. Actually, post April 2019, as the operational commander in any new railway division, clarity on where my resources are in that railway division so that we can deliver for the public and the train operators would be vitally important to the operational optimum at which we would be able to perform. I suppose to some extent that the question about what might be happening if the BTP comes into Police Scotland on the command and control systems is probably not one that we can do an awful lot to help on because we would need the assurances or the response from the police service itself. From a logic and common sense perspective, I have experienced of the BTP system having been foolish enough to leave a bag in a train and through the skills and good officers of the diligent officers of those in the Haymarket depot, I was able to recover at the same day. I would find it odd that there was any suggestion that, with all of the difficulties that the police service of Scotland has, if and or when it takes over the BTP functions in Scotland, that it simply switches off what is currently there. It seems to me inherently logical that the service would continue to maintain the system that works in line with the assurances that were given previously from Bernie Higgins that there is going to be a dedicated transport policing system maintained within the Police Service of Scotland. I cannot imagine that anyone within the IT departments of the service is sitting there devising a cunning plan to get rid of something that works and replace it with something that might not. In fact, there might even be benefits for the wider Police Service itself to look at what the BTP currently has and see if that could be a model for utilising within the Police Service of Scotland. It is not just a case of whether there might be disbenefits, I actually think that there might be benefits in the opposite direction. I just cannot envisage for all of the reasons that have been laid out by Darren and Chief Superintendent McBride that the service would simply turn those kind of things off. Ultimately, all we can do is speculate because we are not in a position to answer that question. Having a fit for purpose system in place is absolutely crucial as far as the staff are concerned. In order to have the correct information related to the BT Police is crucial. In that view, a staff perspective is fundamental. We need a fit for purpose system that will deliver the correct information. That is a concern from a staff perspective, whether it is a driver or where it is a guard on the train. It is crucial that we get the correct communication system in place that needs to be fit for purpose. Although I am speaking primarily as TSA representative for staff, I can comment on the capabilities of our IT system. The command and control system is integrated to crime and case management. The area of command is just allured to the benefits of live instant management. I can also explain the great advantages of crime recording and management and case management, which follows meaning that there should be no inquiry gaps, no victim service gaps and a common standard throughout the force throughout Scotland. Comparably, Police Scotland has at least eight different crime recording systems, at least eight case management systems, none of which speaks to each other. The advantages are huge in our system. That is to the benefit of all. Going to the Police Scotland current IT systems would be a disadvantage. I will come back to that point. I was going to come to it later in the evidence, but since you have raised it now, could you also further explain the difference between recording in Scotland and recording in England? The way that I have understood from the evidence at the moment is not a problem because BTP can record the crimes. Am I right in saying that in Scotland we do it from one point, it is recorded, and in England it is recorded at another point, and there is a potential for loss of evidence and an inability to record crimes in as efficient a manner as you are currently doing. That is essentially correct. England and Wales obey the Home Office, Cringing Rules and Crime Recording Standards in Scotland, including the BTP Scotland. We obey and have been measured to an excellence degree, the Scottish Crime Recording Standards. One difference is the locus of crime. Our crimes generally are transient, with a start and end location sometimes across the border. BTP considers the end location to be the location, certainly to where to begin and allocate crime inquiries, for common sense reasons at least, whereas Police Scotland do not consider the start location as the location of that crime. We are talking about those issues where the exact location is not known. For example, something happens on route between England and Scotland, but we cannot exactly say where the crime occurred. We will record the end location and begin our inquiries there. Police Scotland would consider the start location to be the location of that crime, and that could mean an English crime, a Scottish crime, different legislation, different procedures, different inquiries and so on. Finally, I have other issues that I would like to come back on if we have time. Calum Steele mentioned ACC Higgins evidence last week about having a dedicated railway policing unit within Police Scotland. Can I ask the panel, particularly the Federation and Chief Superintendent McBride, if you saw last week's evidence session about the two or three weeks additional training that would be given to all officers coming into Police Scotland that would really upskill them enough to be seen as dedicated railway policing officers? Can I ask about the element that officers need to have with the personal track safety certificate, and how we will be able to have officers in Scotland who, if they are not trained to the same level as BTP officers, if they do not have the personal track safety certificate, what implications are there for that as well? The evidence given by Mr Higgins, personally, I was not reassured because I do not generally believe that Mr Higgins has thought the consequences of having every officer in Police Scotland trained because the training does not come free. There is a massive cost to that training. Every officer within Police Scotland, if they intend to police the railway or go anywhere near the railway, will have to have personal track safety. If you enter into an environment that is so dangerous without that knowledge and that understanding and that expertise of knowing where you can stand, where you can walk, what direction the travel is, et cetera, then you are putting yourself in a very dangerous situation. I am sure that Mr Steele from the Police Federation of Scotland would be really concerned if his members were suddenly patrolling along the tracks with no certification and no guarantee that, if something happened to those officers, what support would they get from the organisation? It is a misconception that you can simply just train an officer to work within that environment. Yes, they have the initial training, but it is biannual. You have to keep having a refresher course, you have to pass a failed course to recertify to be able to continue working in that environment and you have to carry that certificate with you when you are there. They will need that, so there will be a continual cost for every single officer working within that environment. Mr Higgins' comments, I do not think personally, did not give me reassurance because there is a massive cost implication to that as well. Just a few points. The danger of the railway, as Mr Goodvant has stated, is there and never present. BTP officers undertake the track safety training and refresh regularly. I personally think that those are skills that have to be used on a regular basis, otherwise the training will wane over time. Police officers are bombarded with training in a whole range of areas. If officers were not using track safety training and having that familiarity with the dangerous operating hostile environment that the railway is, people could be put at danger. We go through that safety training because it is necessary from a health and safety point of view to protect our officers. The end game in all of this is to make sure that police procedures can be honed and carried out in an improved way that reduces any disruption to the public. That is why we do the PTS. The benefits that flow out of that are all geared towards the public and trying to get the railway when it is stopped, recovered sooner from criminal acts or mental health episodes. From an RMT perspective, we would support people being properly trained to be anywhere near our railway. That is crucial as far as we are concerned. I did see the evidence last week and we do not necessarily accept the position as far as the proposed merger is concerned. Our position is quite clear from a trade union perspective. We do not support the proposal that is on the table to merge the BT police with Police Scotland. From a trade union perspective, we are certainly concerned and we have certainly not ruled out the option of taking the industrial way action in order to retain the BT police on the railway. We certainly take the railway people being safe and the passengers using the trains in Scotland being safe. We have been backed up on a campaign in Scotland and it is called the Safer Scottish Trains. Part of that campaign is retaining the BT police on our train. As far as we are concerned, the BT police and our Safer Scottish trains are inextricably linked. Therefore, we see the need and the requirement to have the BT police on their actual trains being properly trained. The staff with a personal track safety certificate is absolutely crucial. Anything else is pure nonsense as far as we are concerned. Thanks, convener. To some extent, my response is going to be reflective of what I said previously. It is probably not going to be helpful to try and second guess or interpret what was said by ACC Higgins. Members of the committee will know that I am not in the business of unnecessarily defending senior officers in the police service of Scotland or the police service itself, but I did not take ACC Higgins' evidence to mean what Mr Goodman has said. To my mind, he made it very clear that every officer, while they are going to receive an additional three weeks of training in terms of aspects of the policing of the railway, that the specialist railway policing elements would receive additional training over and above that. I am sure that someone writes to him to ask his view for clarification. I am sure that he would confirm that that is exactly the case, that it is not just going to be three weeks for everyone and then you have a tick in the box for policing in the railways. I agree in terms of the general issues about how dangerous the railways are, because trains are bloody fast and they can scare the bejeses out of you if you are not used to the kind of environments in which you are working. I appreciate that, having come from a smaller provincial force where the relationships and the reliance on local officers and BTB officers is not what it is in the central belt with multiple tracks and all the rest of it, but I have worked not in any great extent on railways, I have recovered bodies from railways. I appreciate again that working in single lines where the train has come to a halt is also entirely different to elements of track safety associated with passing trains and all the rest of it, but I just do not conceive it feasible. I find it incomprehensible that the service, whatever the service is going to be, be it BTP in its current state or some hybrid state or the transport service within the Police Service Scotland, would put any police officer working on the railway line without them having the appropriate track safety requirements, because the old adage of, if you think, health and safety is expensive, try an accident would come bearing down on them with a hell of a rate of knots. Let me tell you, I would be right at the front of the queue knocking lumps at them for even suggesting trying to get that done. In terms of the general evidence that ACC Higgins gave about the raising of the awareness and additional trainings for the Police Service of Scotland, I think is a very good thing. I also was pretty comforted as far as I could be without working through the detail of what we are going to be looking at in an absolute sense, that when it comes to whatever specialist resources are going to be reserved for the railways, that they will absolutely receive the adequate and necessary training that they need to do their job. We have a number of supplementaries from members following the line of question from Douglas Lawson. I am just going to take them in order, starting with Rona, Ben, Mary, then John. Rona, thank you, convener. Yes, it was to ask Nigel Goodband, it's relating to your opening statement. If I could have your response to evidence that we heard last week from Chief Constable Crowther of BTP, I totally accept that the Smith commission recommendations as taken forward in the Scotland Act 2016 bring about the devolution of the functions of the British Transport Police in Scotland. There is no doubt about that, and we totally support it. I wonder if I could have your reaction to that. I totally agree with that statement. What I said at the beginning was, we have seen no evidence within the Smith commission that states that it should be a full integration of BTP into Police Scotland. We support and understand the Smith commission and the devolved matter, and we don't dispute that. What we are in dispute with is to assist the Scottish Government in achieving that aim. There were a number of options put forward, and only one, in my opinion, option has been considered throughout this process, and that is where we had concern. What was the preferred option for you? My personal preferred option would be for BTP to remain as one national police force policing the railway environment. However, if there was a will of the Scottish Government to take more ownership and more control over that, then I see what no reason why British Transport Police officers cannot remain within the British Transport Police, but there is a badge renaming of the Scottish Transport Police, for example, but they remain part of one national police force. It is interesting to hear that there is a view within Scotland that they are trying to create and have accountability for policing for one national police force. British Transport Police is a national police force, and it is a very successful police force. I hear the comment regularly amongst my members who are saying that they are simply just robbing Peter to pay Paul to achieve the same aim. So it is concerning that how there is no evidence to date that we've seen that shows that there's any benefits, that there's any failings of the British Transport Police that would suggest there should be a change. We've proven after inspection, after inspection, that the way we police the railway out police in model is successful. So why would you want to change that? Again, another saying is, if it's not broken, why fix it? I don't think anyone's suggesting there's been failings on the path of British Transport Police or questioning its excellence. I think the question is why would it not be integrated into Scotland's national police force? Because ultimately you're severing the services of a police force, i.e. the British Transport Police. As I say, we are a national force, and suddenly, to take Scotland and the British Transport Police of Scotland away from the British Transport Police, you're actually severing and, for me, creating an unnecessary border between two police forces. Anyone else have a view? I totally concur with what my British Transport Police Federation colleague has said. We do not understand why you're trying to fix something that is not broken. You already have what you need. It appears that you want to break this up to the British Transport Police in Scotland simply to... I don't think that that's ever, it's not a question of breaking it up. Ma'am, that's the feeling. You're going to recreate it in some other form within Police Scotland. You already have this. You can have what you want at no cost, basically option two. I'm sorry that I just don't understand it and neither do staff. If I could just quote Mr Higgins, I don't think that it was the last session, I think that it might have been at the round table. Mr Higgins said that this can be done, however it's going to be massively complicated, and I certainly wouldn't disagree. The BTP Superintendents Branch will work to help the Parliament and this committee to understand all the risks as we see it from our professional point of view. In trying to replicate the service that has been highly valued and ministers have said that repeatedly, the highly value service that the men and women of the BTP in Scotland do, then you... I suppose going down the proposal route as is, we are extracting something that has been immersed in a railway policing culture for over 150 years in its current format for about 67 years from which has been born significant innovation in our approaches to home police procedures, necessary police procedures, that have been honed in such a way as to still fulfil their very need, but actually do it in a way that reduces any disruption that might be caused by those police procedures. If you look, there's five areas generally that cause criminal disruption to the railway in the country, trespass and vandalism, cable theft, level crossings, graffiti and mental health and deaths on the railway. Each of those areas that take place in a very hostile operating environment, BTP has looked at how we investigate those things and innovated in many ways to ensure that we can do it and cause the least amount of disruption to the train operators and thereby to the travelling public, so that the travelling public can have confidence that the services will get them to work daily, on time and consistently, to get people to business meetings, to family celebrations, without the railways being disrupted any more than is necessary. That, I think, is what is at risk here, that specialism that has been built up over many years. I will work to try and replicate that, because that's what I hear people saying, we want it to be at least as good as it is just now, but I think that in accepting that journey that we may be on, there's going to be, if I quote Mr Higgins again, it's going to be massively complicated and we should accept that there is likely to be a level of disruption or diminishing of that service as we transition into the Police Scotland railway division. The risk is all of that good that we do. Disruption on the railways just now, criminal disruption costs over £5 million. If you add in the suicide and the deaths element, you very quickly go up to over £13 million. Now, what we do know from our data across the country is that when local police are involved in some of these investigations at the start, it takes at least 50 per cent longer to fully investigate and get the service recovered, so there is likely to be, I would suggest, an additional cost there, but we will work and we will share our practices as we are right now with the Scottish Government and their seven work streams. We are working to share the way we police on the railways with Police Scotland colleagues to try and build that specialism, but it's borne out of a culture over 150 years and an attitude and a leadership that allows the men and women in the division to problem-solve, problem-solve more with the railway than with police colleagues because of the environment that we work in, and through that innovation arrive at solutions that deliver for the public. Ben, followed by Mary, we are still in supplementaries, but I have a good line of question. Thank you, convener. There is a real collective determination to maintain a transport policing ethos, no matter how a Parliament chooses to proceed with that, and I think that it's important to bear that in mind. Contrary to what Douglas Ross said in a similar vein to what Callum Steele said, my interpretation of the evidence last week from ACC Higgins was that there would be a maintenance of a specialist railway policing entity within Police Scotland, together with extra training in transport policing for all new recruits that then go through Police Scotland's training programme at Tullian. Given that we have that collective determination to maintain a transport policing ethos and to enhance the transport policing offering here in Scotland, would such extra capacity within the police service be welcomed by the pan? Yes, Mr Goodband. An example of such has recently occurred in Holland. Unfortunately, it didn't work there, and what we have now on the Dutch railway is private security, because the train operating companies actually use private security to police. I don't think that's anything like what's been proposed here with respect. You're making a suggestion that the transfer or the integration into Police Scotland provides a wider specialism, a wider resource, and I would contradict that in saying, Holland is an example where it didn't work, where the same perception was given when that decision was made. In a similar scenario, Lord Arras himself has conducted a review regarding the terrorist threat to London, and in London we have the largest police force in the UK, and part of Lord Arras' recommendations was that the Metropolitan Police should adopt some of the good practices of BTP. I go back to my original point when I answered Mr McKay's question, why try and fix something that's not broken? We provide an excellent service, and there is no logic or no reason or no evidence, more importantly, why suddenly that service that's being provided now should be transferred to another police service? As Rona Mackay said, there isn't a perception here that British transport police is broken. The approach, as I understand it, is to enhance the offering that's available for transport policing in Scotland by utilising the economies of scale and the other extra specialist services that Police Scotland would bring to transport policing offering here. However, it's for clarity with reference to your points about Holland and London. Again, the proposal, as I understand it, is that a specialist railway policing entity within Police Scotland will be maintained, and those specialist skills will be maintained and enhanced. On top of that, extra capacity will be created by creating a greater awareness through training through the programme of Police Scotland. The idea that it's a contraction of the offering in terms of railway policing seems to me to be a misrepresentation. It's about enhancing the capacity within the service. I think that the enhancement is an interesting area. The crime on the railway in Scotland is at an incredibly low level. It's probably one of the safest environments in the whole country. If I said to you that your chance of being an assault victim or suffering any violence in the railway is one for every 275,000 passengers, you may get an idea of the levels of criminality that we are dealing with. Although enhancements are always welcome, there's always a decision that will be made in prioritisation over where the crime happens. I suppose that our history and our planning and our policing plan development absolutely acknowledges a key role of staff who work in the railway, front-line staff. In fact, if we talk about some of the innovation that I mentioned earlier, a number of years ago, we brought about what is called the DNA spittle stick that allows—and it's been rolled out further than the railway on to buses and other public transport—that allows anyone who's spat at a disgusting assault to take a sample. We innovated there and we are able to get that analysed and, very often, we will get a successful hit. However, there are priorities to be made there. If we are dealing with around 5,000 crimes on the railway, that is absolutely one of our priorities. I'm really pleased to say that we have less than 100 assaults on staff every year on the railways in Scotland. It's too many, but it is at a low level, as crime is generally. The challenge for us is actually keeping it that low, so those enhancements are welcome if staff are trained. At the round table, Mr Hanstock and Mr Higgins talked about collaboration and talked about, I think, a moment—the phrase might have been, when our backs are to the wall, when there is serious disorder, we will absolutely come together. In our planning for events, we plan together with Police Scotland, as you would probably expect. However, if it comes to tasking specialist resources and our backs aren't to the wall, so we're not in that heightened serious disorder mode, I would look to use BTP specialists, whether they're dog handlers, working at heights, teams, public order officers, because they understand the operating context of the railway. They understand that some of our police procedures can add to disruption on the railway, and therefore our procedures that have been adapted and honed are understood by those specialists. We wouldn't always necessarily turn to bring people in, if you like, from other forces, because that level of knowledge isn't there just now, but we hope, in the work that we progress and we share our training with Police Scotland, that they will see the way that we train and the way that we operate in our culture of policing on the railway. I would hope that no one would misunderstand that the railway environment in Scotland is an incredibly safe environment. We have about 48 crimes for every million passenger journeys. That was in 2012. We've got it down now to 45 crimes for every million passenger journeys. It's an incredibly safe place to the railway, and our task that we are charged with is to try and keep it thus, and we do that through our specialist skills and our specialist training, and we are immersed in a much bigger body that looks to innovate, so that we can provide solutions that keep the services running and delivering for the public. Thanks very much. Another supplementary, I've got two more, and then I'm going to move on to our main lines of questioning, which will be with Stewart. Mary and John. Thank you, convener. Just in relation to specialist support that British Transport Police offer, I think that it's worth pointing out the work that British Transport Police have done in the reduction of metal theft, an 87 per cent reduction in the last few years, which has a massive knock-on impact on the wider rail network. I don't know if you want to comment on that, but the other question that I wanted to put to you was that British Transport Police tend to be visible, and I'm not by any means saying that Police Scotland is not visible, but there is a perception of visibility amongst British Transport Police officers, particularly at, I suppose, antisocial hours. You would expect to see officers and stations late at night and early in the morning to prevent and tackle antisocial behaviour or any incidents that kick-off on trains. Passengers have an aspiration and an expectation that they will see officers, so I wonder if you could perhaps comment on what impact you think could possibly happen if the merger was to go ahead. Do you see a pullback in visible policing? I don't. I know that there is a danger that BTP and in the future railway policing officers could be pulled away, and I think that the submission that we put into the committee explains that point, why we would think that there is a danger that that could happen in some abstraction. However, if I could just deal with the late night disorder, and I'm really pleased that you have seen that visibility, we've actually just spent the previous 12 to 18 months looking at our demand profile and how we meet that. That's across the force, but here in Scotland as well. On 9 April, we're about to change the rosters for officers and staff. It's never popular, but we're doing it because we feel as if we're slightly out of step in terms of where the main demands are. The railway is, in my view, the economic backbone of the country. It contributes so much. We could talk about, during the day, with commuters and having that confidence of getting to work, or we could talk about the nighttime economy and people going into our larger towns and cities, enjoying the theatre or pubs or cafes, whatever it happens to be. We can pull in the railway staff there who have to deal, as you said, with perhaps some of the less savoury characters who take to the trains of an evening. My officers are out there to absolutely bring that confidence to the railway staff, because if the staff aren't on the trains and don't have the confidence, then the trains are unlikely to run. Twenty-eight years in the railway police have absolutely taught me that. The public won't travel in on late night services either or, more importantly, travel home after they've, hopefully, enjoyed an evening out with their friends and spending some money in putting it into the economy. If you want me to say more on the late night disorder and abstractions, I think that it's covered in the superintendent's branch submission. If I could just talk briefly on metal theft—I could actually talk at length on metal theft, but I'll save the committee that—the phenomenon of metal theft, in my experience, was first identified by the British Transport Police above any other force in the country. We saw it because we saw the impact that it was having on trains and public service and people getting into work. We saw the disruption that was being caused. We worked closely with Network Rail and train operators to devise a plan that would help to overcome that. What we saw very quickly was that metal theft was going much wider than the transport network, and it was a supply and demand, and it was economics because the price of metal was going up around the world. However, it was starting to affect critical national infrastructure, local authority housing stock, faith buildings and a whole range of areas across ultimately communities that affect businesses. BTP has led a number of national campaigns against that. The first one was with the help of the Home Office and a £5 million grant that brought about some legislative change. Of course, if committee members will know here, we have done something similar in Scotland through £600,000 from Transport Scotland grant, and we have encouraged, engineered and collaborated across critical national infrastructure with utilities, police forces and other law enforcement agencies to bring about the figures that you quote, the railway figures. 52 per cent reduction in metal theft across Scotland has been brought about by the leadership that BTP has shown in that campaign and the way that we have galvanised other law enforcement agencies, local authorities and utilities to better protect their assets, more enforcement targeting metal thieves, working with scrap metal dealers and new regulation and the Parliament and officials and ministers to change the law. That is the contribution that BTP has made around metal theft, which I think has led to that reduction. Does anyone else want to comment? I think that perhaps in the vein of what the area commander just said that those butyl metal theft operations resulted in generating many crimes, some of which were off the railway, but dealt with an entirety by BTP, meaning that they were detected and reported positive crime statistics. Those were all transferred to Police Scotland, so they actually have the benefit in their statistics. We are integrated in the common aim of justice in Scotland. Having a visual presence at the freight yards and the network railway yards is absolutely crucial. My members have certainly advised me that seeing the BTP police visit those locations on a regular basis is crucial. The link between the BTP police and the staff is crucial, because the BTP police know the staff and the terrain of the railway, so that is crucial. On the merger between the BTP police and Police Scotland, from a staff perspective, a trade union perspective, we can see the BTP police expertise and knowledge being lost if the merger went ahead. Potentially the BTP police would be swallowed up as a result of the Police Scotland resources. If you take, let's say, Edinburgh Waverly and Glasgow Central, Glasgow Queen Street, if there was an incident taking place of antisocial behaviour within the Prince Street and we had the BTP police within the concourse of Edinburgh Waverly, the BTP police would be expected to deal with that antisocial behaviour activity and Prince Street. Therefore, losing that expertise, that knowledge in terms of dealing with any forms of assaults and antisocial behaviour taking place, where it would be on the concourse at the stations, Edinburgh or Glasgow, or God forbid, on our actual train. We certainly get a lot of information coming to the trade union about verbal and physical assaults, which is a big concern for us. We are engaged in transport in Scotland and in conjunction with Scotland and the BTP police about the possibility of using body cameras in order to address the issue of antisocial behaviour and physical or even verbal assaults. What is coming over loud and clear from my members up and down the country is keeping the BTP police expertise and knowledge and the presence of the BTP police on the railway is crucial. It is fundamental. If I may, I should declare a membership of that in the parliamentary group, and it is not very often that I would take a different view from Michael. In relation to that, I share his view on the retention of a specialist service. It was to go back to a point that Mr McBride made earlier and maybe just an opportunity. Maybe I heard it wrong, Mr McBride. You weren't inferring that Police Scotland would deploy officers other than risk assessment, and that risk assessment would clearly show the requirement for that additional training. You talked earlier on about the need for specialist training and almost an inference that there could be people deployed who have not been given that specialist training. Is it back to the track safety competition? Yes, yes. I am not actually sure that the point that I made or that you are quoting me on. Sorry, let me rephrase it. Given the contractual requirements, never mind the legal and moral requirements, no one would be deployed, no police officer, regardless of how bad he would be deployed in that way without having the necessary training. That would certainly be my best and professional advice to Police Scotland colleagues that they should not do that. Stuart McMillan followed by Alexander patiently waiting, and then we have Mary Fulton in May. Thank you very much, convener. I just wanted to talk about interfaces that have come up. There appear to be something like 40 to 50 trains across the Scottish border each day. The UK, London in particular, has passenger trains going to the Netherlands, to Belgium, to France each day, and freight trains are coming from Spain and Germany on a regular basis. Indeed, we have just had the first freight train from China that has just arrived in the GB network. The numbers of vehicles involved in that appear to be greater than those that cross the Scottish border. It is worth saying that, at 12.15, there had been 7,393 trains operated in the GB network and 766 trains in Scotland. At the moment, there is an interface between 766 trains in Scotland and 40 trains across the border. In relation to the way in which interfaces with Netherlands, Spoorwagen, SNCF and SNCB are managed and how they work with BTP and railways generally, does that actually work? I appeared to hear the suggestion that it could not be made to work across the Scottish-English border, but I am endearing that it is causing huge problems with France, Belgium, the Netherlands and other jurisdictions that are connected by train. It was Mr Goodbrand who first raised the subject of interfaces, but I could be corrected. I am sorry, Mr Stevenson, but I am not in possession of any facts regarding the policing of the railway in Holland other than the fact that there was the decision to take the policing. I heard the point about policing in the Netherlands, Spoorwagen and the network. That is not my point at all. My point is that we have trains crossing borders to other jurisdictions. I am one of the issues that was raised earlier, was that having a different jurisdiction in Scotland from England would be a major problem. I am just wondering if you could tell us about the problems between London and Paris, London and Brussels, London and the Netherlands. I have no evidence to answer that particular question. I do not think that I have suggested for one moment that there would be difficulty in cross-border between Scotland and England, because we prove now that there is not a problem. What we suggest is, and what we are drawing an influence from, potentially due to a different command structure, a different crime recording system, a different communication system between two different forces, there could potentially be a problem. I am not suggesting now that there is a problem between Scotland and England, in actual fact, quite the reverse. It is a successful policing model that works now, and hopefully it will continue to work in that way. On the 17 return journeys that there are for passengers a day between London and Paris, who records the crime? I am not sure the answer to that question. So it has not been of such a character as to come to your attention. Cross-border, at least in that one particular instance, has not been an issue. There is always the opportunity, if you want to provide further evidence at any point, after today's session, if there is something that you are not aware of and want to go back and check, the committee is happy to receive it. I think that we really need to move on. We got the point that Stuart Stevenson has made, unless anyone has got anything substantial to add to it. Just very quickly, if it helps the committee, the example that is used is a much more controlled environment. It is a port with all the port controls, and I am not sure the levels of crime, but in terms of crime it would work exactly the same way as we have described here. It would be, if you like, the end station destination, so crimes that are coming in to St Pancras, it is an international port, would be recorded there. For reasons that were given by others earlier, you have the victim, you can get statements, you can start off the inquiry, but it is a much more controlled environment. I do not know the crime statistics for the Eurostar and that is the operations of that. The trains that pass between the Scotland and England border, as I think Mr Goodman said, works effectively just now. I suppose what the proposal will bring in is almost like dual controls. We are asking two organisations to think in completely different ways from what they have done hither to and how crimes would be recorded or how incidents would be dealt with and their competence as they cross the border or don't, as the case may be. I think that we will move on. Alexander, followed by Mary. Thank you, convener. One of the benefits that we were given for creating Police Scotland was that there would be specialist policing across the whole country and that there would be a seamless transition for the employees' rights and conditions. That was not quite the picture that we have today. For your own organisation as you move forward, ensuring that there are rights and conditions for employees, we advise that it should be as seamless as what happened with Police Scotland. It is an interpretation whether you felt that that was a seamless transition. I do not believe that the members and the employees of Police Scotland saw it as a seamless transition. I have major concerns about how that could be managed and how it could be maintained, retained and sustained for individuals and employees of the British Transport Police as we go forward. I would like some views on that. That point is a major concern for the British Transport Police Federation because the officers of the British Transport Police have dual status. I think that you have already heard that they are employee stroke police officers, but what they are not is crowned servants. In Police Scotland, the transfer among the eight forces was crowned servants to crowned servants. To date, we do not know and we have not been shown what the legal mechanism is for a transfer of an employee to a police service who are crowned servants. It is a major concern. I know that Mr Matheson himself has sent a letter to myself to circulate amongst the officers in BTP Scotland. We hear the term triple lock guarantee, but the terminology that is used in the letter and the memorandum policy is that the ambition is the aim where possible. In my mind, it does not give a triple lock guarantee and it continues with that level of uncertainty for the British Transport Police officers. What exactly will their terms and conditions, their pensions look like when or if they transfer into Police Scotland? It is a major concern. Mr Hawke, you know from a staff perspective, we do not represent the BT Police employees, not our members, but from a staff perspective, terms and conditions are crucial. From an RMT perspective, any attacks on the terms, conditions, pensions or real-weighty passes, we would not hesitate in taking industrial-weight action and issuing the ballot papers. Certainly from an RMT perspective, we stand shoulder to shoulder with the BT Police Federation in terms of their members protecting their terms and their rate conditions. It has not been unreasonable to have a guarantee of their terms and their rate conditions being protected to go forward. Mr Burnley, staff and TSA members are in fear now of the proposed integration. They cannot see what is coming, for sure. Do not find any comfort or reassurance anywhere, and it feels like we are being pushed towards a life and career cliff edge where you will either be pushed or jumped and we have no idea what the landing of a leg is. Initially, Tupay was mentioned and discounted, understandably. A version or form of Tupay was mentioned and discounted again, understandably, and the latest mention was of Cabinet Office transfer of staff or similar regulations. That would be between you remaining within the same employer—that is not the case here—and you remaining within the same pension fund, which is not the case here. I have to report that there is fear among the staff about what might happen in a number of ways. One major fear is that we could not remain with TSA, we believe, once transfer had been completed and we would be with a union organisation that does not understand the lead-up to this or our paying conditions anyway. Most staff who have options will take them. Please do not think that the numbers of staff you expect to transfer will transfer. That will not be the case. That is one of the main cruxes about the numbers that we are looking at, because the information that has been given assumes that there is a transfer going to take place of a number of individuals. That is the quality, skills and the package that comes with that. However, in reality, you believe that that is going to be much more diminished than it would be because of the fear and the anxiety that is being created because of the situation and the way that it is going forward. In response to Mr Stewart's question, it is important to make a couple of small points. One is that I would never presume or assume to speak for members of support staff in terms of how the transfer from their former forces into the police service of Scotland went, but certainly from a police perspective, given that terms and conditions were well, certainly meant to be. However, they were by and large universal but one or two local nuance. That resulted in very little difficulty whatsoever. Whilst I understand why Mr Goodman made a reference to Crown Servants, we are not actually Crown Servants in Scotland. It is very common short-hand that translates wrongly north of the border. It might be angel stancing ahead of a pin but, in truth, it is not the status of police officers in Scotland. However, there are clearly issues in terms of transferring what are employed police constables into those that hold an office of constables. Certainly from preliminary examination that I have undertaken on the arrangements that exist between Cabinet Office and how those relate to the two-pay principles, I do not see them as being insurmountable. Currently, within the Police Service of Scotland, we have officers that have a variety of different terms and conditions based on when they joined and what their particular arrangements were. I suspect that we have very few that are left that are entitled to our rent allowance. We do have a large number that are entitled to transitional housing allowances. We also have officers that joined. In fact, I know that we do have those that are entitled. We also have a very small number of officers that are actually directly responsible down to Mr Finnie, who secured very bespoke arrangements based on the promises that they were given before they were due to start in 1994 versus those that they were actually given when they started in October of 1994. We have those that are in different pension schemes, both what is known as the 1987 pension scheme, the 2006 pension scheme and the 2015 pension scheme. If, and or indeed when, the decision is taken to take the step to take the officers of the police service of Scotland, I know that one of my responsibilities for looking after what would soon become my members would be to engage in the most proactive of terms with the British Transport Police Federation, with whom we have nothing but the best work in relationships that I could describe in any event, to make sure that we understand all of the nuances of what apply to the differing elements of entitlements that exist for police officers across that range to make sure that they are transferred into the police service of Scotland. Whilst I know that it will not necessarily be a clean and simple thing to do, the nature of bringing people into any organisation is always going to result in some kind of differences along the line. I suspect that, at some point, as happens with all organisations when they evolve over time, it is that they get closer to something that looks and feels very similar to everybody rather than having different numbers of people on different elements of entitlement. As indeed is currently the case in the police services now. I am conscious of the time that I have asked questions and responses to be as succinct as possible. I am going on with the main line of questioning and I hope that, at the end, the supplementaries that some people have indicated that they would like to ask, we will have time to ask them. Mary Fawld by Fulton. My main question was very similar to Alexander Stewart's question, because I want you to ask if you have been given any long-term guarantee about the terms and conditions. I asked the question last week about the terms and conditions of staff upon transfer, because it is my understanding that TUPID does not apply. Assistant Chief Constable Higgins said to me that he had been assured that the Scottish Government was working furiously to ensure that the current conditions of service of all British transport police will be honoured, and Mr Foley said that it was his belief that that was the intention. I take it that the witnesses today have been given no guarantees that that will be the case. We definitely have not been given guarantees. I very much welcome Mr Steele's stance that he would be supportive of the officers if they transferred over to Police Scotland. There is a slight stumbling block and that is that British transport police officers are under a contract of employment, under the Employment Act. They do not and are not employed under police regulations. Again, it is questionable whether our members can indeed be represented by a police federation that is written within their statute under police regulations, because we exist, the British Transport Police Federation, under the Statute of the Railway and Transport Safety Act, not under police regulations. I am not suggesting for one moment that we cannot achieve that, but there are a lot of obstacles in the way that nobody understands. It has never been done before. There is no legal mechanism to allow it to be done. Yes, we can use COSOC, but that is no guarantee to an officer who may transfer a year or two years down the line for that to change, because it has no legal binding guarantee for those officers to keep their terms and conditions, their pensions, their free travel in some cases. Unfortunately, we do not have that guarantee. My concern is that, over time, there will be a natural erosion of terms and conditions. If British Transport Police move in with their enhanced set of terms and conditions, over time, that will be naturally eroded. I accept the point that Callum Steele makes, that there are a number of different legacy arrangements across the Scottish police force, and different officers have different enhancements. However, if officers leave, those enhancements are not maintained, so there will be a natural diminishment. I am concerned that the same would apply to British Transport Police. Mr Steele? I thank you, convener, and it is specifically on the point that was made by Mary Fee on the question of whether the position is actually one of enhancement or one of betterment. I am not entirely sure that that position has actually been answered. It is certainly, I think, a bold statement to make it as a position of fact. There are certain elements where the conditions of BTP officers are certainly better than those of Police Scotland officers, not least in respect of the entitlements for travel on the rail network, but, again, certainly from my understanding, those vary depending on when people join the BTP. However, in terms of general terms and conditions, I think that it would be a bold step to state that there is a risk of deterioration for anyone coming into the Police Service of Scotland, because at this point in time, I would like to think through no small effort down to the work of the Scottish Police Federation, among others. We have significantly better terms and conditions than many other police officers in other parts of the UK, and there is a danger of trying to get into Alps and Oranges here, but I certainly know that in many elements of the conditions that apply for the Police Service of Scotland, they are superior to those that are replicated in England and Wales, and I do know that, to a large extent, but not exclusively, the BTP conditions service are more closely aligned in general terms to those in England and Wales than they are in terms of general terms. If I could just turn to the substantive points on the question that Mr Sure asked and Ms Fee around the terms and conditions, it is undoubtedly true that this has caused significant angst and uncertainty among staff. Staff who we expect to go out every day and police the railways in the really successful way that has been acknowledged by the committee, ministers and others. Angst is driven by complete uncertainty over the legal mechanism and what guarantees that legal mechanism may well bring. If I could just use an example, and I know that Mr Goodband has asked for this question a number of times from officials and others over the legal mechanism, but some of the staff in the BTP in Scotland have said, why would it be the 284 of us? Why is the wider organisation not, if I could use the phrase, at risk of going across? Because we don't know the legal mechanism, and why would it be us necessarily? Now, that comes from, if you go back to what I said before, a culture of specialism, a conscious decision to join a specialist railway police force, and people are saying, why would I want to transfer into something that is much more generalist? The pension arrangements are quite different. A funded scheme, not an unfunded scheme, with different accrual rates, different contribution rates, different benefits, different opportunities to retire, different indexation start points, massively complicated, if I could quote Mr Higgins again, massively complicated, but BTP are working with the Scottish Government and Police Scotland in the workstream around terms and conditions to try and unpick this and see how it might, if you like, transition across. However, it is undoubtedly extremely complicated, has caused great uncertainty and angst among the people who serve you in the BTP in Scotland. Just at this point of information, members will remember last week that Mr Folly undertook to give an explanation of why BTP did not apply. He has since got back to the clerks and referred the explanation to be made by the Scottish Government, so just as a point of clarification on that. I would like to ask the panel, it might be best directed at Mr Goodbunt. Where are the majority of resource season assets for BT situated firstly on a UK basis and then on a Scotland basis? It may be also for Mr McBread. Well, each division, and there's four in total, have centralised specialism, i.e. crime scene investigators, crime scene managers, detectives, specialism within the CID, reactive, proactive, and then there's the centralised force specialism, which is in London at force headquarters. In a case of a major incident, a murder investigation of that nature, resources to support the already resources within the divisions will be deployed from our force headquarters. I think that, like most other police forces, we are caralled or concentrated around a number of hubs, as Mr Goodbunt has just explained. In Scotland, the majority of our resources, like police Scotland colleagues, are in the central belt. The reason why I asked about that line of questioning was actually coming back to an earlier point from yourself, Mr McBread, where you had spoke about the significant cost increase if police Scotland are involved at the start of an investigation or an incident or whatever. What circumstances would there be where police Scotland would need to be involved at the start of an incident and how often does that occur? I just missed the start of the question there, that I had said that there would be an additional cost increase. Yes, it was an increase, I think, 50 per cent was maybe what you said. I think that what I said was that we know that criminal disruption on the railway cost-sex amount, we know that if local police forces attend first, it will take normally at least 50 per cent more time and therefore additional cost to getting the railway recovered and people moving again. I said that 50 per cent was more than time, okay, so that was my misunderstanding, but how often does that happen? How often across Scotland would you say that an incident has occurred on the railway that the police Scotland are first to respond to? If we use the figures for this year, police Scotland attended first to incidents on the railway 1.8 per cent of the time, so two incidents in a week out of about 250 incidents, so about 1.8 per cent of incidents, police Scotland turned up first. Okay. What sort of incidents are they most likely to be? I think probably right across the spectrum of criminality, so it could be trespass, vandalism, antisocial behaviour, disruption at stations, incidents on trains and they may be called to intervene, so it will be a wide spectrum of things that they'll be asked to live across. Okay, so in terms of when Police Scotland arrived at the scene or when BTB arrived at the scene, you would accept that there is joint upworking arrangements in place between the both services? Yeah, absolutely. We collaborate on a daily basis, I think, as I said earlier. We plan together for most big events. Police Scotland are planning for the policing of the event. We are normally always planning for the mass transit system in thousands, tens of thousands of people moving to go and see whatever the event or concert or sporting event happens to be. Okay, and do you think that—just to finish off, convener—do you think that the confidence that we heard in last week's panel from John Foley, for example, and Bernie Higgins, which we've heard about from other members? I'm not saying that. The confidence that we heard from John Foley and Bernie Higgins last week in relation to the merger being successful, do you think that a lot of that has come from how current operations are and Police Scotland obviously being already involved in the incidents and feeling that the merger can work successfully? I don't know that I picked up the confidence if I'm honest. It might very well have been that and I may have missed it. Well, I've got quotes here. I think that other people had mentioned them earlier. Just to get everyone in. John Foley said that we are extremely confident that we'll deliver the merger successfully, and Bernie Higgins said that I am confident that the transition would occur and it would be done in collaboration and partnerships. I'm probably on record both for the Superincendence Association and the divisional commander to say that if we are talking about policing and perhaps the difference between arresting someone in Central Station or Waverly Station or Aberdeen Station as opposed to arresting them on the high street, there is no difference. You know, police officers are police officers and they'll be able to do that. Where I think the specialism, the cultural difference in a specialist police force comes is in the discretionary effort that we bring and the discretionary benefit that we bring to the travelling public, to the train operators and actually the wider Scottish economy, allowing service recovery by honing our police procedures and ensuring that they do not disrupt any more than is necessary. Getting the service back up and running so that people can get to their work or business meeting is where we really add value. I'm not convinced yet, although we are working with Police Scotland to share our procedures, that that will be available on day 1 on 1 April 2019 or any time soon after that. I think that it could be quite disruptive. Just an observation. Police Scotland would not have access to railways if there was a derailment or a collision or any trespass on a railway. If Police Scotland officers do not have a PTA certificate, they can't go on or near the running line. Mary Forill by Liam? Yeah, it was just really, harking back to an earlier point, but actually following on from what Fulton said, because it was in a relation to a question that was raised last week and that was John Finnie that had raised it initially. I'd had to follow up one and it was really about asking how the British Transport Police were deployed across Scotland and we received the figures back as part of supplementary evidence this week. You can see that, obviously, the central belt is quite a heavy presence there. I suppose that the thing that I find more concerned is just that I suppose that there is less of a presence as you move up towards my constituency, Angus North and Merhyns, up around the north-east and across to the Highlands as well. I suppose in that sense that if we are looking at a specific transport division within Police Scotland where those officers are trained, I feel that that would give me more comfort anyway, that if there was an incident in some of those other areas that aren't so well staffed at the moment, there would at least be a presence there that were capable of dealing with that necessarily to get your comments and thoughts on that. I would probably go back to what I said earlier. We've just completed the demand review work and from 9 April we are changing how we look and feel to adapt to the demand. The demand in the north-east for BTP is primarily football based with quite a lot of work and effort done with the offshore industry because of some issues that can arise when people come back on shore. Some particular trains that come down from the north-east all the way down to Newcastle that have to be policed right through seamlessly across the border because of the risk of disorder on those trains. I also said before that the number of calls that Police Scotland—that's a two-way process—go to some of our calls. I said 1.8 per cent, so it's about two every week that they will attend on average. We receive over a thousand missing persons inquiries and requests from Police Scotland over the period of year, just to give you one example. In the last two weeks we've received four requests for specialist search capability, trackside looking for evidence or missing people that we supply back in. It's a two-way process. However, our analysis of the criminality and the disruption on that line and in the region of the north-east is causing us to change our staff profile and not just the numbers that we have there but the times that they work to better meet that demand. It's not related to that, but it was particularly for you, Mr Burnie. I was about the staff survey that was carried out and the results of that. I was just wondering how many the staff took part in that survey. I see that 37.5 per cent indicated that they would be intent on leaving, some through retirement but many through an expectation that they think they'll be made redundant post-transfer. Have you been given any indication that that would be the case, that that's what would happen, that the staff would be made redundant? That's certainly the case, we believe. One reason being that we've seen the removal redundancy of staff in Police Scotland already, we know of their low morale. We want no part of that, obviously, we're safe and comfortable where we are. If we do transfer across, we will be on average £3,000 a year salary less. We don't know where the post would be. I will also note that Police staff roles in Police Scotland vary regionally, meaning that the same role can be differently paid and have different conditions depending where it is in Scotland. That is all adding to our anxiety and conclusion that if we have an option to go elsewhere before then, we should go elsewhere. Is that somebody from Police Scotland? Is that what you've heard from the Government? Is it just your belief that redundancies will take place or have you specifically been told that? In terms of the salary, you mentioned that as well. Is that something that you believe to be the case or is that something that you're told is going to happen? We know that that's the case. We have checked this out. With who? The GSEC, with the respect of Police Scotland. If there's more information that you can provide to committee on that, I think that that would be helpful and it would allow us to move on. Liam is followed by Douglas. Those are supplementary, so if we've got time, we'll do it. John and Ben had said that they wanted to come in. I might give Calum Smith the opportunity to come back. First, in relation to the confidence that Fulton MacGregor indicated earlier, we had similar expressions of confidence from SPA in Police Scotland in the run-up to ISEC. Clearly, what we need to do is satisfy ourselves with that confidence. I want to touch on the issue of morale, which is mentioned by a number of you this morning. I think that the way in which any change process is clearly difficult. With Police in 2026, we have the prospect of a reduction in the number of police officers. I would perhaps ask Calum to steal what the likely impact is on the morale of officers within Police Scotland if in order to facilitate the transfer through the negotiations that are coming at the moment, it is felt that they are coming in on terms and conditions that are preferential to those that Police Scotland officers have. For Mr Burnley, in particular, the staff survey referred to has upwards of 40 per cent indicating a feeling that they would be leaving the service through one means or the other. How disruptive that is in terms of maintaining any sort of service at a point of transition, which, as I say, all of us accept that any transition, any change is going to be difficult, but the order of magnitude that has been quoted in that staff survey would give rise to any concern in any organisation. Thank you, convener. I will get to Mr MacArthur's questions presently, but I think that it is important—to some extent, I will slightly contradict what I said earlier about speaking here about the terms and conditions of support staff. I suspect that there are unison colleagues who will be watching this broadcast and are now screaming at their television sets, but the harmonisation of support staff terms and conditions in the Police Service Scotland has not yet taken place in a way that the service would expect. Rather than identifying that that is a problem and something to be feared, I think that that shows that the two-page principles under which staff came from their former forces into the Police Service Scotland have actually been adhered to. The same principles could only apply to Police staff or support staff members coming from the British Transport Police Authority into the Police Service Scotland, so that is not something that would result in a diminution in terms of conditions that would result in the maintenance of what they currently have under the principles that TUPI clearly act at least until such time as you get to the position of harmonisation at some point in the future, because no one can ever have what they had in the past forever. On the specific issue of the impact of the number of reduction in numbers and morale, there is a very distinct difference between police officers and reduction in numbers to support staff and reduction in numbers, given the position of redundancy. Police officers—certainly those who hold the office of constable—cannot be made redundant. As such, the morale impact for those who are losing their job does not really exist. It is only for those who are left because people have not been replaced as a consequence of retirement or through natural attrition. Self-evidently, there is a morale issue if the loss in numbers results in a reduction in capacity and those who are left during the work of those 400 or so have certainly been floated around just now. In the sense that if there is a deal to be struck with BTP to allay the concerns that have been expressed today, we are expressed at the round table and are very evident in the written evidence that we have received. In the sense that there will have to be the claiming of some success that those terms and conditions have been protected with the migration of BTP into Police Scotland. Against that backdrop and the context of the debate around policing in 2026, it is surely a goodness that that will give rise to some degree of, if not resentment, at least a questioning as to why there is this debate happening over here where there is a treatment of officers coming into the force in one way and a separate debate with Police Scotland officers, which is happening in a very different and more difficult context. I do not agree and the reason I do not agree is because there is a fundamental difference between those that hold an office and those that are employed. The one thing that probably has not been explored up to now is the question of what happens to those that are currently employed when they hold an office. Do they then maintain their entitlement to redundancy and some of the questions that are associated with that? Personally, I cannot see how that is possible. Whilst there are advantages to being an employee, there are also some advantages to not being an employee and the holder of an office. On that single particular issue, I do not think that those two are compatible. There are efforts, in fact not efforts, that are provision in the Police Service in England and Wales where there is the capability to apply for a form of voluntary redundancy although they do not call it such to forget the terminology that they give it. There is no help from my colleagues to my line. No, it does not matter. Either way, redundancy and policing does not work. I see the opportunity for when, because we have not. We have deliberately not stepped into the national territory of the British Transport Police Federation on this. I see the opportunity that when, or if we have these discussions, the maintenance of the terms and conditions that those that are currently there are something that should be quite easily secured, because we did secure some of the protections that would be expected for officers from the former forces. I am getting the commune from the former forces in terms of the residency and the positions that could be applied to them in terms of transfer. It is only right and proper that the same thing would apply for Scotland. If it is very brief, I can take Douglas and then John, but it will have to be very brief. It is just two final points based on the evidence that we have received. First of all, on the staff survey, which I thought was interesting, 37.5 per cent said that they were intent on leaving, yet the other 62.5 per cent, it was not a ringing endorsement to remain with BTP coming into Police Scotland. They said that they cautiously said that they intended to stay. We have looked at morale, but I wonder if we could briefly go round the panel, and I will have a separate question, Mr Steele, but looking at the potential for the loss of experience, not just the morale that means that those people will not continue, but the loss of resources and the loss of experience that we in Scotland would suffer as a result of those figures if they bear any resemblance to what actually happens with the lack of officers coming forward. Just on Mr Steele, because he mentioned transition, I think that it is fair to say that as part of this panel he has perhaps been more supportive of the plans than the others. I wonder what his view is, and I saw his tweet last week about the evidence given by ACC Higgins and how he was very impressed by it. ACC Higgins mentioned the luxury of having two years to implement those changes. Given the problems expressed with the creation of a single force by the Scottish Police Federation and its members, do you think that even with that luxury of two years in ACC Higgins' words, is this the right time to be doing it? With the uncertainty over Police Scotland, all the problems that they still are going through and the problems that your members are highlighting on a daily basis, is this the right time to be integrating BTP into Police Scotland? If you could be very brief. In brief, convener, in terms of that very specific question, that is ultimately a matter for Parliament and one under which the Scottish Police Federation will have a little control, but I do think that it is important to deal with the question of support. The Scottish Police Federation has maintained neutral on this question and remains neutral on this question even now. What I have done in my evidence today is highlighted what I consider to be some of the areas that could work and how the federation and the service would approach them. We have not and would not make a position on a body of employees that are not our members. That would be wholly inappropriate. Ultimately, when Parliament makes that decision, then we will get to that particular state. You were not casting aspersions to your evidence in general. If there is anything that you have not added or that you would reflect on and want to add, the clerks will be happy to receive any clarifications or additional information. Briefly, anyone else wants to comment? Just briefly, in terms of Moral, from a staff perspective, on-train, gate-line and at-actual stations, Moral is at a rock bottom position, as far as staff is concerned. We are greatly concerned because we obviously engage with our members up and down the country. They are greatly concerned about what the ramifications and implications will be for the BT police going forward. If there is any thought of taking away the BT police from a railways, we will be greatly concerned with that position. It is crucial and important that we retain the BT police with the knowledge and expertise that they have. That is crucial in order to ensure that we have a safe railway in Scotland. The demographics for the division, if that is the proportion of the force that is to move across, shows that there are somewhere in the region of 30 to 35, maybe up to 40, people who are approaching towards the end of their service, if I could put it like that, and who may choose to go. That is the sort of number that you are looking at. In terms of trying to retain them, we have talked about the uncertainty. If those people with that service do choose to go, then we would be looking to fill them from within Police Scotland. Therefore, again, I would go back to the submission that I made in writing. That specialism will possibly take a hit right away. That concludes our line of questioning. I thank the witnesses for what has been a very detailed and very helpful evidence session. Douglas Ross. I wonder, convener. We heard from the panel and, indeed, from members some difference in opinion and very crucial information that we received last week from ACC Higgins. Some of us had concerns about training. Other members did not have concerns. Given that this is a vital aspect of what we are discussing with BTP integration, can we ask for a full response from ACC Higgins as to what he intends Police Scotland's training for current and future officers coming into a specialist railway division and all 17,000 officers? We need a full and detailed analysis of that. Our witnesses today have raised concerns and others who think that it is sufficient to have that information in front of them before we reach a conclusion. I agree that we will ask Mr Higgins for that information. I now formally close this meeting. That concludes the 10th meeting of 2017. Our next meeting will be 21 March, when the main item in business will be a further evidence session on the railway policing bill. Thank you all very much.