 Aesthes Cymru 17, 2017. Felly nid o gael. Agenda item number one, Decision on Taking, an item in private. The committee is invited to take item five in private, which is a consideration of witnesses for our scrutiny of domestic abuse Scotland Bill. Are we all agreed? Agenda item number two is consideration of the affirmative instrument on the Apologies Scotland Act 2016, accepted proceedings regulations 2017 draft. Before I begin, I'd like to declare a voluntary interest as the formal member in charge of the Apologies Scotland Act 2016. On that subject, could I just say and put on the record how helpful it was that you shared your personal correspondence and response with the minister? For those of us who, in quite a technical area, have perhaps not got that, that was very helpful. Should you wish to do it again, I encourage you and other members to do so. I shall note what you say. Right. I welcome Annabelle Ewing, Minister for Community Safety and Legal Affairs, along with our officials, Elinor O, civil law policy manager and Katrina Marshall, directorate of legal services with the Scottish Government. I remind members that officials are permitted to give evidence under this item, but not to participate in the formal debate on the instrument at agenda three. This item is a chance for members to put to the minister and officials at any point seeking clarification on the instrument before it is formally disposed of. I refer members to paper one, which is a note by the clerk. A number of submissions have also been received in relation to the instrument and have been circulated. I invite the minister to make a short opening statement. Good morning, convener. Those regulations do two things in relation to the Apologies Scotland Act. They make a small amendment to the existing exception for inquiries and the added exception for the, essentially, fitness to practice proceedings of 10 professional regulators. Currently, the act accepts inquiries that Scottish ministers cause or jointly cause to be held under the inquiries act 2005 but does not exempt inquiries held in Scotland solely at the instance of UK ministers. While those are likely to be rare, making this change will provide consistency. The second exception is in relation to the proceedings of 10 professional regulators, which are the regulator of the social service workforce and the regulator of teachers in Scotland, as well as eight health regulators. The need for making this exception has been clearly set out by the regulators themselves in their briefing papers to the committee. It is clear that the Apologies Act could have negative unintended consequences for their fitness to practice proceedings. In particular, it would impact on their ability to establish facts and make risk assessments. In terms of their procedures, an apology can provide an important piece of the full evidential picture—not just the terms of the apology and any undertaking that was made, but also the circumstances of the case. An apology can be used as evidence of the level of insight into wrongdoing a professional had, which in turn can be an important part of an assessment of the risk that they may pose to the public in future. The need for this exception was raised by the General Medical Council and the Nursing and Midwifery Council as early as during stage 1 of the Apologies Scotland bill, and their concerns were recognised by the Justice Committee in their stage 1 report. Continued work revealed that those concerns extended beyond the health regulators. The Scottish Social Services Council and the General Teaching Council for Scotland have made clear that they share the concerns about the impact of the act on their proceedings. I am keen for the Apologies Scotland Act 2016 to have as much benefit as possible, and I am grateful for the input that the convener has had into the process to maintain the focus on that aim. Those draft regulations therefore only accept the proceedings of professional regulatory bodies who have a shared rationale for the need for their proceedings to be accepted, ultimately with a view to preserving their ability to protect the public. Can I open with just one question? In stage 3 proceedings, it was made quite clear by the then minister for community safety and legal affairs that the exemption would apply only to health professionals. That was because it was seen that the provisions of the Apology Act and the provisions of duty of candor, which the Government was going to introduce, could not co-exist. Under the provisions of the duty of candor, an apology must be made and, if it is made, it would be used in legal proceedings. That runs entirely counter to the provisions in the Apology Act under section 1. So, would the minister confirm that that was the case? What I can say is that, during the passage of the Apologies Bill, certain issues arose. One of them was the position of the at that time 2015 Scotland Bill, which became the Health Scotland Act of 2016, which introduced the organisational duty of candor. That was a discussion that was on-going during the passage of the bill, but, at the same time during the passage of the Apologies Bill, it was recognised that, in addition, it would need to be an exception in order to take account the concerns of health regulators at that time of the way in which the bill could cut across its professional standards and regulatory processes. Therefore, the fact that there was going to be a duty of candor ahead of exception was not deemed sufficient, and that is why discussions were on-going about there being, in addition to that, an exception for these professional practice regulatory proceedings. I hope that that deals with the first point. What I would say is that, during the course of the work that was undertaken by officials to scope out how the exception would therefore be drafted, what would be the appropriate approach, discussions were held with health regulators, and those discussions extended beyond the GMC, the General Medical Council and the National Midwifery Council to other health regulators. In the context of that work, as far as the Scottish Social Services Council is concerned, it was one of the health regulators who flagged up the issue to them. With regard to the general teaching council for Scotland, that could have been through that similar route or, indeed, as a result of direct discussions that officials had in good faith, exercising due diligence, as they are required to do. That is how that came about. Where we are today is because, in essence, the 10 regulatory bodies have made it quite clear that they share the concern that the application of the act would impact negatively by way of unintended consequences on their fitness to practice processes and regulatory proceedings in that regard. Therefore, they share the concern that that would limit their ability to protect the public. Is not it the case that every regulatory body could put forward the same argument? No, I do not think so because, in fact, there are a number of regulatory bodies that we have managed to establish from that they would not be seeking any particular exception, and those include the Law Society of Scotland, the Faculty of Advocates, the Institute of Chartered Accountants of Scotland, the Institute of Faculty and Institute of Actuaries, the Chartered Bankers Professional Standards Board, the Civil Aviation Authority, and the ones that we are aware of at this stage. As a result of the fact that the nature of the fitness to practice proceedings of the eight health regulators and the social services council and the general teaching council for Scotland, they share the same concern based on the same rationale that the Apologies Act 2016 would cut across their regulatory procedures in a negative way, and they assumed that it was unintended that it would be negative, but nonetheless in a negative way that would in turn impact negatively on their ability to protect the public and for the public to have confidence in the way in which those professional bodies regulate their professional members. If we set aside the eight health professionals because we are all accepted that they will be exempted from my point of view from the duty of candor, and if we concentrate on the GTC and the SSW, who you say have the same concerns that the other ones do, but the other eight are going to be exempted because of duty of candor. That has been accepted at stage 3 by the minister. The previous minister, could the minister explain in what way the act could negatively impact on GTC and SSW? Just to clarify the point, the other eight are not being accepted on the basis of the duty of candor. As I tried to explain during the passage of the Apologies Bill and now act of 2016, it became clear quite early on that other legislation, specifically the health act, or the health bill 2015, as it was now the health act 2016, was going to require a separate head of exception. That was agreed, that was made clear, but notwithstanding that discussion and that agreement, it was also recognised that there in turn would have to be yet an additional head of exception to cover the regulatory proceedings of the health regulators at that time, as those had been the bodies anticipated. That was not to do with the duty of candor exception. Indeed, it is quite clear that notwithstanding that there was going to be a duty of candor exception in the Apologies Act 2016, it was recognised that there had in addition the requirement to have as an additional head of exception these regulatory processes, so it is not correct to say that this was as a result of the duty of candor. Sorry, I was just going to try to deal with the second point. Before you leave that point, minister, but they were all health professionals, that is what they all have in common, they eat, and that was accepted. GMC had come in, I think the British Medical Council and there may be others, that was always accepted, but they always came under the banner of health professionals. They did at that time come under the banner of health professionals, but it was not to do with the duty of candor exception that had already been discussed. As I was trying to explain to the committee in our due diligence work that was required in order to come up with a statutory instrument, it became quite clear that, as for the social services counts for Scotland and for the general teaching counts for Scotland, they shared exactly the same concerns about how the act would cut across their professional regulatory processes such that they would not be able to fulfil their duty of protection of the public in the way that they felt that they should, and that is why we have arrived at the SSI being drafted in the way that it has been to include specifically those 10 regulatory bodies. I would refer the committee to the detailed submissions of both the general teaching counts for Scotland and the social services counts for Scotland, which have been submitted to the committee. I'm sure that members have had a chance to read those, and they set out quite clearly why they share the same concerns as the health regulatory bodies, so I hope that that is. Would the minister explain, then, why she thinks that the GTC and the SSW would be negatively affected by the provisions of the apology? Well, they make it quite clear that, in terms of their processes, the processes that they have laid down, which are ultimately designed to ensure that the public is protected, that the bill, the act, rather the Apologies Act 2016, would cut across their processes just in a similar way in which it cuts across and has been accepted, it seems, by the convener, the eight health regulatory bodies. Can I stop you there? It was never accepted that the health professionals and others would be adversely affected by the Apologies Bill, but it was accepted that the duty of candour, which expressly says that an apology must be admissible once it's given in civil proceedings, would affect it, so it was on that basis that I agreed. So, if you could just explain why the GTC and the SSW would be adversely affected by the provision of the bill, an example, perhaps, would help. I certainly will, convener, in one second. Just to go back to the issue of the duty of candour, just to make it quite clear that this exception for regulatory bodies is not to do with the duty of candour, there is an exception for duty of candour already agreed in the bill. It was recognised at the time of the passage of the Apologies Bill, now act, that it would have to, in addition, be a completely separate head of exception, which was to encompass these professionally regulatory processes. In that regard, I could quote during the stage 1 debate, Alison McInnes, who said that all the regulations of health professionals, the nursing and midwifery council and the GMC both argue that the bill would have serious unintended consequences. The warnings that we have heard from those bodies must be heeded. The regulation of our health professionals is an important safeguard and we should do nothing that impacts on the regulator's ability to bring a fitness to practice case. Can I stop the ministers there? The health professionals are not at dispute today. What is the GTC and the SSW? Is that the same rationale? Could you explain what the rationale is for the GTC and the SSW? They have set that forward quite clearly in the position that they took to the committee. If we could just take the social services council, for example, they have explained why the exception is required and they go on to explain the nature of their process and how each part of their process interlinks one to the other. They also say that if the act were to cut across their processes, there could be significant implications on the coherence of the processes that they have laid down, where, in a certain part of the process, the act would apply and the apology would not be part of their evidence that they look at to look at insight, to look at risk assessment and so forth, but it could be part of subsequent parts of their processes. There would be a complete inconsistency in their ability to carry out their processes in a coherent manner. For example, an apology by a worker does not necessarily mean that the worker is admitting liability. However, the terms of the apology and the circumstances around which it is made may be relevant to the factual consideration. We highlight the importance of a worker making an apology when something goes wrong. That is an important part of a worker showing that they have learned from what went wrong and helps to show that the worker has insight. We believe that a panel should remove social services workers who persistently fail to show a lack of insight into the seriousness of their misconduct. It may substantially prejudice the worker if there were practical difficulties in a panel being able to take a worker's apology into account. That, for one, is the position of the Scottish Social Services Council. Can I perhaps refer the minister to the definition of the apology? Perhaps, once I have done that, she could give me an example of where that would adversely affect anyone in the GTC or the SSW. The definition of apology means, under section 3, any statement made by, on behalf of a person, which indicates that—this is quite precise—the person is sorry about or regrets an act or mission or outcome and includes any part of the statement that contains an undertaking to look at the circumstances in giving rise to the act or mission or outcome with a view to preventing an occurrence. As the minister will appreciate, for survivors of sexual abuse who have been abused in an institutional situation, very often by people who would come under the SSW or in a boarding school or school environment, then the acknowledgement that this has taken place is huge in itself. The expression of regret goes a long way to helping the recovery, but the undertaking to make sure that it does not happen to anyone else by looking at the circumstances is huge. In the limitations bill, we have already said that people will not—a lot of the survivors will not go down this route and do not want to go down the route of formal trial and compensation, but the apology could be just what they need. Can she explain a circumstance where the bill's provisions, as laid out in section 3, would be to the detriment of anyone because they were not exempted under the GTC and SSW? Just to clarify, of course, and I thought to do that in my most recent letter to the member, the accepted proceedings that I set forth in the SSI do not in any way cut across the opportunity for institutions, be they schools or whatever, to issue an apology. That does not cut across that in the slightest. I think that it is important, given the very important subject matter that the member has just raised, that we put that on the record. When we are talking about an institution, bricks and mortars do not give an apology, a person gives an apology, and that person may well be giving that apology as a third person on behalf of someone else saying, I acknowledge this happened, I am sorry that it has happened, I will do everything I can to look into the circumstances to make sure that it does not happen again. That person could be a member of the GTC and the SSW, and the exemption would stop them. In fact, I would say that it would almost certainly stop them giving that apology, because it could adversely affect them, and that is what the whole apology legislation is about. It is putting into a bill what is already law in civil proceedings. What I would say to the member is that I think that it is important that we understand the two key different points that have been made here. One is that if an institution or a third party on behalf of that institution responds in terms of an apology on behalf of that institution, that is entirely different from an individual who is apologising for action that they have taken. That is an entirely different set of circumstances. The first set of circumstances, the SSI does not cut across that in the slightest, and I would like to reiterate that for the record. The second set of circumstances is where an individual apologises directly for actions that they have taken themselves at some point in the past. In those circumstances, two issues would arise. One, if they were within the domain of one of those regulatory bodies, I think that that practice proceeding would most likely arise if they are still on the register of that professional body. Of course, when looking at a set of circumstances, the regulatory body will also take into account the gravity of what the relevant instance is. A second point to make here is that the Apologies Act 2016 has no impact on the criminal law. Therefore, if an individual apologises for actions that they themselves had taken, I think that what we would see and what we would all expect to see is that the criminal authorities would, thereafter, embark on an investigation. I think that we would all expect to see that. Those are two different circumstances. Therefore, it is correct to say that the SSI does not cut across the conclusions of the interaction process, which I know that the member followed carefully, which was that for institutions such as schools and local authorities, that they should have a facility to issue an apology without the worry of civil proceedings. That is absolutely respected by the SSI. On the other point that the member raised in terms of the definition of apology, of course, in section 1, subsection B of the Apologies Act 2016, one of the elements is that an apology made cannot be used in any other way to the prejudice of the person by or on behalf of whom the apology was made. The point that the regulators, including the Scottish Social Services Council and the General Teaching Council for Scotland, are making is that there could conceivably circumstances, notwithstanding their general approach that apologies are to be welcomed and so forth, but there could, in terms of their proceedings, be certain circumstances where an apology would take into account all the other evidence before it nonetheless be used, if you like, to the detriment of the person concerned. They need to have that facility to retain the coherence of their regulatory proceedings, which are, in the end of the day, designed to ensure that the public is protected. I am going to let other members get in. All I will say is that statements of fact are not protected. In those circumstances, it would be criminal and the Apology Act and the apology would be admissible. We are looking specifically at the definition, which is merely an acknowledgement and an expression of regret and an undertaking to look in to see if anything could be done. The point that the minister does not take is, if it is someone apologising on behalf of, there is the potential, as the FBGA submission points out, of a duty of care being raised for that professional and that adversely affecting them potentially. If that is the case, they are not going to apologise on the closure that the survivor's seat is not going to be open to them. Other members will have questions. As someone who has not been involved in the earlier stages of the bill, it is quite a lot to take in. I wonder if you could just clarify from what I am understanding of it for the GTC and the SSSW. Not to be exempted would impinge on their professional judgment on whether someone is fit to practice or fit to teach and hamper the framework that they have been working to ensure best practice and to protect the public. Is that really the nub of why they want to be exempted? The member is absolutely right. In essence, it boils down to the need to protect the coherence of those regulatory processes in order that they can fulfil their mission, which is to protect the public in the end of the day. While the Genesis is correct to say that the reference of Mr Wheelhouse in the stage 3 debate where he stated quite clearly that the Government would come back with an SSI in due course, to deal with the cases that he was aware of at that point, which concerned the coherence of those professional regulatory processes. At that time, it is fair to say, as the convener has mentioned, that the reference was specifically to health regulators at that time, the GMC and the National Midwifery Council. However, in subsequent discussions that officials were required to carry out, further to due diligence and the exercise of good governance, it became quite clear that those two additional non-health regulatory bodies shared exactly the same concerns in terms of the nature of their proceedings and the role that an apology could or could not play in those proceedings. Therefore, they were concerned that, if they were not also accepted, that would impinge on their ability to ensure that they can, if you like, police their profession and ensure in the end of the day that the public is protected. I was here when the bill went through, but I confess to have not paid close attention to it. It is clearly quite a technical area. What I have tried to do in my own mind is to come up with an example that touches on precisely the part of the bill, the act to which the minister referred, in other words, one be cannot be used if any other way to the prejudice of the person. The example that I have in my mind, which would not be caught by the criminal law, is a teacher who, having taken a strong dislike to a particular pupil in the school, in a situation where that pupil is making choices about what courses to cover, the teacher chooses to exclude them from a course that they might want. Perhaps the course has equipment, it has only got space for 30 people, and 35 people have applied. One of the five is excluded simply because the teacher dislikes a pupil. That would be professionally quite improper, it would seem to me, and it is a matter that the GTC should properly get involved in. Would it be the case—and I am asking for an opinion as distinct from a legal opinion, because of course the courts would decide a legal opinion—as to whether, if an apology were made in terms of one be, that would carry with it the risk that the GTC could not then deal with that matter raised by that apology in professional standards. Is that an example of the sort of difficulties that we get into, or are there better ones? I think that the member captures the kind of difficulties that could be faced. The point is that the apology cannot be used to the detriment of the person and it has been clearly explained by the various regulators and the submissions to the committee that actually in some circumstances it could be and it cannot be ruled out that an apology in the context of when the apology was made or not made, in the context of the other evidence before that regulatory body in the instant case before it, because each case will turn in its own facts and circumstances, it cannot be ruled out that the fact that the apology, if it could be used for the detriment of somebody, is ab initial to be excluded under the 2016 act, it cannot be ruled out that that would cut across the proceedings of the, in this case, the general teaching council for Scotland and to the detriment of the coherence of their proceedings and to the detriment of the public in terms of which the proceedings are there to ensure that we all have confidence in this case, the teaching profession. Just on and move to the teacher's relationship with the pupil having been one of an inappropriate sexual relationship. That being a matter for the criminal law, I'm assuming that to be the case. An apology made under this act would not inhibit the GTC from taking action or indeed the courts from taking action. So it is, whether it's inhibited or not inhibited, entirely relates to what is being apologised for and in particular in cases of sexual offending. It would not create an inhibition in relating to the individual who is involved in the inappropriate behaviour. It's correct to say that the Apologies Act 2016 has no impact on the criminal law of Scotland and any allegation in terms of somebody within one of these professions or anywhere involving inappropriate sexual conduct would obviously meet up with the criminal law authorities who would mount an investigation and it is very difficult to see in what circumstances and I think we can all recall past cases where in such circumstances, for example, within the teaching profession, the teacher's ability to teach is suspended pending further investigations. I think that it is important to bear in mind that the act is not cut across the criminal law but notwithstanding that the regulatory bodies through their submissions to the committee have made it quite clear why they are concerned that the coherence of their ability to ensure that those for whom they are responsible are meeting the professional standards required and that the regulatory body has the appropriate authority to tackle circumstances, which obviously we know are very much the exception rather than the rule amongst all these professions where everybody does the very best. Nonetheless, the regulatory authority must retain the ability to investigate in the way that is appropriate for their profession. If I could perhaps take Stuart Stevenson's example, teacher dislikes the pupil exclusive from a course, well surely there's a complaint raised, that's what we're assuming, I mean it's not going to make an apology out of the blue and the facts will be looked at and they'll either be proven or not. If an apology is given to the effect that look, I'm sorry that you feel there's been an omission here, you've been excluded from the case, I regret that but we will look into the circumstances. Really, and each case will depend on its facts and circumstances but it is important to remember what the definition of apology is in terms of the 2016 act, which includes this element of no detriment to the individual and that is where this cuts across potentially with the 10 regulators because there could be circumstances conceivably where an apology is a part of the proceedings. Can we keep to this example minister? Where is that to the detriment if someone, a teacher or someone on behalf of the teacher gives that apology? Where's that a detriment to anyone? Isn't that only to the good of the person seeking an explanation? One, we need to look at all the facts and circumstances of each case. What I'm trying to explain is that given the definition of apology includes this element of no detriment, then what these regulators are saying is that, as a result, this cuts across their processes and that, as a result, if they are not accepted from the act, their ability to protect the public will be diminished and that is what they're saying. I revert you again to the definition and what it says in every single section one b. That will always be this section three. Section one b is the detriment issue. Anyone else want to come in? John Finnie, Oliver Mundell. Thank you, convener. Good morning, minister. Minister, you touched on this a bit earlier. It's about the consultation. I understand that the issue was discussed with the UK Government. Was there any view expressed by them at all? UK Government? On the issue of the Inquiries Act? On what we're discussing at the moment, the specifics. I think that the discussion with the UK Government was about the inquiry exception. And what view was expressed? It seems that, as a result of an oversight, the way that the Inquiries exception had been framed was to include within the exception Inquiries 2005 act Inquiries initiated by the Scottish Government, initiated jointly by the Scottish Government with the UK Government, or conceivably one of the devolved Administrations, but had not included within the exception Inquiries under the 2005 act, instigated solely at the behest of the UK Government. Now, while in Scotland that would be rare and we can't easily imagine the circumstance, it's nonetheless it was felt that in order to ensure consistency that that should be included within the exception and that has not received any opposition, as you can imagine from the UK Government in that regard. Okay, thank you. Moving on to the other regulators who were contacted and you laid out a list there, did any of them say why they weren't concerned about this? Yes, so the law society for instance said that apologies do not feature in their proceedings. It's not a useful bit of evidence in their proceedings. And did any suggest that they would adapt their processes to incorporate this because one might imagine that a loss passed and bodies would respond to that by looking at their procedures and what implications they might have? I think that that's a good question and I think that it's certainly something that we'd be happy to write to the bodies whom we know are not concerned about not being part of the exception. So those I listed were the Institute of Chartered Accountants of Scotland Factive Advocates, Law Society of Scotland Institute of Faculty and Institute of Actories, Chartered Bankers and Professional Standards Boards and Civil Aviation Authority. We'd be very happy as a follow-up to write to those bodies to ask what account they intend to take of the apologies at 2016, assuming that it does indeed come into force. Okay, minister. I think that a couple of times he's used the term shared rationale between the General Teaching Council and the Scottish Social Services Council. And indeed that manifests itself in an astonishing similarity in the submissions that we have from them in some sections verbatim the same. Is there a perception that this is people getting together to try and avoid the application of something that was commended by this Parliament? I hope not. I don't believe that that's the case. The genesis of where they started and often keeping track of legislation is not something that all bodies are equally good at. And the genesis was during the passage of the Apologies Bill that the issue came to the fore because the GMC and NMC were very much on the case. They had discussions, as did we with other health regulators, who found that their proceedings—it stems rather from the proceedings being essentially similar, rather than some attempt to gang up to defeat the bill. But just because the proceedings are essentially similar, this was recognised at the time of stage 1 in the stage 1 report. And the reason that we have the extra 2, if you like, here today—the non-health regulators—is simply because they also have put to the Government that they are in essentially the same position, have shared concerns and do have the concern, as with the others, that if they are not accepted from the Apologies Act 2016, it cuts across the coherence of their regulatory fitness practice processes, which in turn would mean that they feel that their ability to protect the public would be diminished. OK. Can I ask whether you envisage any other organisations coming forward? Where is this to pass? At this stage, one cannot rule that out, but to date nobody else has. They have had the opportunity to do so, so we can only make the reasonable conclusion at this stage that we do not expect any great clamouring. Obviously, if that were to happen, we would have to look at the facts and circumstances to see if there was the evidence that would back up at any attempt to have them also accepted. However, it is based on the evidence, as with the submissions from these regulatory bodies. Finally, if I may minister, we have a written submission from the forum of Boys and Girls Abuse and Courier's Homes, which is very concerned about this. Certainly—and it was just myself and the convener who were involved in the last session with this legislation, which was seen as a tremendous addition to the range of options. The Scottish Human Rights Commission has been at the heart of a lot of progressing issues of historic childhood abuse. Have they expressed a view on that? I met officials with the Scottish Human Rights Commission a couple of weeks ago now, and a number of issues were raised. I raised the issue. No comments were made at that time, but the Scottish Human Rights Commission, and since that meeting, no comment has been received by them on that issue. Reference was made to the Law Society and the Human Rights Commission. At stage 1, the minister will recall that there was evidence to the effect that an apology they state from their experience is not prejudicial to pursuers because, in most cases, there would be no apology vote coming if it was admissible in civil proceedings. I move on to—was it Oliver and then Fulton—Fulton, Liam, Oliver and Mary. I have got the order wrong. Thank you. It is just a quick question for the minister. There seems to be a general consensus that the health agencies should have an exemption. Did the two other agencies, the SSC or the GTC, have any view on the fact that their members are often involved in health professions or health settings themselves, particularly the SSC, where a significant portion, if not a majority, would be health professionals? Therefore, the same issues may apply as with the others. I know that the GTC might be less so, but given that there is teaching in health settings as well, I wonder if that was something that came into any of the discussions. I do not think per se, but, in terms of the actual nature of the processes and the initial registration and then fitness to practice proceedings that may ensue thereafter, I get in the nature of the professions concerned that there may be certain similarities in work done and, therefore, that would lead to similarities in the nature of the fitness to practice proceedings, but it is clear from the submissions made that they all shared the same concern that the act, if applied without the exception to them, would cut across their proceedings, which they say would diminish their ability to protect the public. I know that, minister, you earlier quoted Alison McKinnis. I would share our concerns and clearly would not want to distance myself for somebody who is immersed in the detail of this rather more than I have been. Following up, some of the line of questioning that John Finnie came up with earlier struck me as you were talking about the issue of insight that the regulatory bodies determination to address future risk and the need to maintain the coherence of the regulatory process, which I think that you referred to on a number of occasions. It did strike me as unusual that that would not apply similarly in relation to the law society charter accountants and a number of the other bodies, where you can imagine a situation where a law form may issue an apology on behalf of one of its solicitors in much the same way as, for example, a school might issue an apology on behalf of the school for something that has happened that subsequently would find itself perhaps in a disciplinary process with an individual teacher. John, I am rather struggling to understand how it is that they see themselves as not touched by this in the same way as the bodies that are listed in the SSI. In terms of the law society, as Eleanor said, she came back to us and said that they do not use apologies such within their processes. As regards the others, we simply understand that they have not sought any exception. John Finnie's point about that after doing some follow-up to see in which case how they intend to factor in the Apologies Act 2016 when it comes into force within their processes is a very good suggestion, as we are very happy to do. I cannot give a definitive response to the member on the other bodies because they have not given us a statement of why they do not want to—they just do not share the same concerns as the eight health regulatory bodies and the other two mentioned this morning, and that is the information that we have. The only exception in that regard being the law society who did come back to say that they do not use apologies in their system such that this would be an issue. I suppose that using that rationale, the risk is that either the Apologies Act will be deemed as not applying to those regulatory bodies or that those regulatory bodies will simply seek an exception to the act. In a sense, it does, as the convener was perhaps alluded to earlier, calling to question to what extent the act is going to be allowed to bite anyway. On the other bodies who I listed a couple of times who have not sought to be part of the SSI, one would need to know the detail of their individual processes, but, as far as the SSI is concerned, it is not seeking any exception to be made for them. With regard to the bodies that have expressed the ask for an exception to be made, the eight health regulators, the General Teaching Council of Scotland and the Social Services Council of Scotland have explained why, in the nature of their processes, they need to ensure the coherence and maintain the flexibility that they have to look at an apology in different ways in the context of all the evidence that would be before them in any given case, and that is why they have shared the concerns that they have that, if the act were to apply to them without any exception, it would impair its ability to police the profession, if you like, which would, in turn, diminish its ability to protect the public. I cannot quite see how those regulatory bodies who appear unconcerned by that do so, for the same reasons as the Law Society, that apologies do not form a part of the regulatory process at present. I cannot see how what effect that legislation is going—not the SSI but the Apologies Act—what effect that is going to have when all the bodies that it might touch upon are then seeking an exception. For reasons that I entirely understand, but in a sense, it does appear to drive a coach in horses through the rationale for the Apologies Act in the first instance. What I would say, though, is that, with regard to the bodies that we are dealing with today, who have asked for the exception for the reasons that they have stated in quite some detail, this issue, in terms of the unintended consequences of the act, was recognised as earliest stage 1 in the passage of the Apologies Act, and it was recognised in the stage 1 report. It was recognised by the member's former colleague, and it was accepted that work would need to be done to pave the way for an exception for those bodies. What is happening today is that the SSI is doing that very thing. In the list of the 10 bodies, we have also the Social Services Council for Scotland and the General Teaching Council for Scotland on the basis that the rationale, the grounds for the exception for the eight health regulators, is also the grounds for exception for the other two. Therefore, in the interests of good governance, it would be very difficult to argue that, on exactly the same rationale, you could have eight but choose to reject two. That would not seem to be a coherent way to deal with that. We do not have any idea or any inclination, any understanding that there would be any clamoring coming after this for any further exception. I cannot rule that out. I do not have a crystal ball, but nobody else has come forward. We have been working on this for quite some time now, and nobody else has come forward. So, hopefully, today, we can see that some progress can be made and that the 10 bodies mentioned in the SSI, who have expressed concerns based on the same grounds, will be treated as having the same concern, which is, ultimately, as I have said, to ensure that they have the ability to police their profession. I will leave it there, but I think that the committee might want to proactively pursue this with the other regulatory bodies, as well as with the Human Rights Commission, to establish what exactly their position is. I will leave it at that. Kate Fullton, I believe that you have got it. Sorry, convener, it dawned on me. I have to ask the question that I probably should have referred members to my register of interests as a member on the Scottish Social Services Council. It is our apologies for that. Julie Notead now. Just in response to the law society, I believe that it is because an apology, the idea that our apology gives good evidence of fault, is not one that they recognise. They are not reliable indicators of wrongdoing and certainly not under the terms of the definition, so I do not know whether that helps Liam McArthur. We are on to Oliver and then Mary. I wonder whether the minister does not think that it is concerning that the legislation has almost become a sort of opt-out piece of legislation for organisations where, rather than a Parliament deciding who it applies to, it is whether or not organisations get in touch and say whether or not they would like it to apply to them. I do not think that that is really a fair description of the process here, which I have tried to explain, which was that in stage 1 of the passage of the Apologies Bill in the stage 1 report, it was recognised that there would need to be work done to reflect the unintended consequences that would otherwise be the case for the two health regulators who had flagged up the issue at that time, which were the GMC and the National Nursing and Midwifery Council. In the context of that work, further health regulators who had essentially the same concern based on essentially the same procedures made their views known in terms of the work that was already flagged up by Paul Wheelhouse, my predecessor in this post, at the stage 3 debate to pursue a statutory instrument, and that was made clear at the time of the stage 3 debate. In the further work that was done to come up with the best approach to the SSI, the General Teaching Council for Scotland and the Scottish Social Services Council for Scotland made their views known. On the basis that they have the same concerns based on essentially similar procedures in the interests of legal coherence, the rationale for proceeding with exemption for the eight health regulators was deemed to be appropriate in terms of the same, in essence, the same rationale for the other two regulators. That was how the process has been proceeded with. Is there any thought that it would have been better to test it and see how it developed over time, rather than exempt everyone before proceedings even started? In the stage 3 debate and the Apologies Act, the undertaking was given by the minister in the stage 3 debate on the record that there would be an SSI worked up further to the section 2 provisions of the bill act. That is what we have been in the process of doing, and that is what we are here today to seek the committee's approval for. Can I read out exactly what the minister said? I mentioned earlier that concerns were raised at stage 1 regarding the effect of the bill on regulators of health professionals, such as GMC, nursing and midwifery council. My officials have been working closely with the NMC and GMC to find a solution to their concerns. It is clear from those discussions that an exemption for civil prompts readings undertaken by health professional regulatory bodies is needed. I repeat again that health professional regulatory bodies are needed. However, my work is still required to establish exactly what forms such an exemption should take. I would therefore like to take the opportunity to state my intention to use the powers on the Scottish Minister's Outland under section 2.3 of the bill to add an exception for proceedings held by health professionals regulators once the additional work has been included. It was quite clear that, having gone through all the evidence at stage 1, the stage 1 debate, the amendments at stage 2 and the stage 3 debate, which was debated ad infinitum, that was the conclusion and the undertaking by the minister. I refer the minister again to the submission from quarriers who are saying that that was agreed. Survivors knew what they were getting, and they are now going back on that. I would say again to the member that the reasons why the social services council and the general teaching council for Scotland are in the frame now is because they have come forward to say that they have essentially the same concerns and that the rationale for accepting the eight health regulators applies to them at an equal measure. In terms of the due diligence that the Government is required to exercise in framing its legislation, that is entirely in keeping with the discharge of our due diligence obligations. With regard to the second issue, I reiterate again for the record, because it is something that I want people to be very clear about, that the exception of the ten regulatory bodies—not institutions, not individuals, but regulatory bodies—in terms of their fitness and practice proceedings, in no way cuts across the interaction process in terms of the ethos of what the Apologies Bill could mean for survivors. It does not cut across that in the slightest, and I would wish to reiterate that for the record, because I am sure that it is important to reassure survivors that this Government is absolutely determined to do everything that we possibly can to ensure that they receive the acknowledgement that they deserve and the justice that they deserve. The regulatory bodies are looking at an apology from an individual or someone on behalf of another individual. It is a smoke stream to say that it is a regulatory body. We are still getting back to the apology made by an individual under the definition of the act. There is nothing there that proves fault or liability or any wrongdoing whatsoever, but it acknowledges that something happens, that it expresses regret and that it gives an undertaking to look into. There would be nothing that would prevent institutions from proceeding with an apology, nothing whatsoever, further to the SSI, absolutely nothing whatsoever. The fitness to practice proceedings can only be brought against somebody who is registered as a member of the relevant body. They do not have jurisdiction to deal with people that are not members of their profession registered with them, so I think that that is important to ensure that there is no confusion there. However, to repeat, the SSI does not cut across in the slightest the ability for other two apologies at 2016, which was indeed in turn as a result of the interaction process to ensure that if that was the route that institutions wished to go down, it should be facilitated so that they could do so, and nothing in the SSI would make that more difficult. I just wondered what discussions the Scottish Government had had with the two organisations in question around the possibility of them changing their procedures to incorporate their apologies act. I am not sure whether it is for Government in terms of the work that we have done here to go to any of those regulatory bodies, be it the GMC, the dental council, the NMC, the social services council for Scotland or the general teaching council for Scotland, to say that they have got to change their processes. I do not think that that was really part of the due diligence that we were undertaking. If the member feels that those bodies should have a different approach, he would probably have to ask his Westminster colleagues to pursue that matter, because the regulation of much of that—certainly of the health bodies—is regulated from London. However, it was not due diligence for us to go and tell those bodies that they had to change the procedure. Rather, we had to deal with the reality of the situation as we find it. The way that we find the situation is that we have been advised by those 10 bodies that, for them, the application of the apologies act 2016 would cut across the coherence of their fitness to practice proceedings, which would, in turn, impair their ability to police the profession, which would, in turn, limit their ability to protect the public. I have not had any detailed discussions with them beyond their submissions. You have just taken those on the face of it and not made any further inquiries. Are you suggesting that the submissions being made by the general teaching council for Scotland and the Scottish Social Services Council are not factual? I am not suggesting that they are not factual. What I am suggesting is that, if someone has a problem with a particular piece of legislation, you know that the Government that is coming to this committee to ask for a change to the legislation to make an exemption for a particular organisation might have had further discussions with those organisations to try and work out whether or not a change to the law was needed. I think that the way around that this happened is that the way that I have explained that the debate was already on-going at the time of the stage 1 debate is that, for those bodies who had fitness to practice proceedings, there was a concern that there could be unintended consequences, that the Apologies Bill now act could cut across them in a way that would impair their ability, the regulator's ability. In the context of that debate, as I have explained to the member, other health regulators came forward to say that they were in exactly the same position. Those two additional bodies came through to say that it was a process that was on-going, and there was a clear undertaking, as the convener has just read out from my predecessor, Mr Wheelhouse, to say that an SSI would be brought forward, which is what we are doing today. I would simply refer the member to the detailed submissions of the regulators who have made written submissions, including, in particular, the General Teaching Council for Scotland and the Scottish Social Services Council. Those are their procedures as they currently stand. We are talking about introducing an SSI now, and therefore this is the reality of the situation that we have to look at if the member is interested in pursuing matters in terms of suggesting legislative change, mandatory legislative change to the procedures of registry bodies. I am sure that he will be interested in pursuing that. For absolute clarity, you have not had any discussion ahead of introducing this SSI with either of those two bodies? Officials have had discussions with them, but they presented the evidence of how they use apologies in their proceedings. They presented the case that apologies are a useful bit of evidence about what happens. In someone's mind, when something goes wrong, it is evidence of insight into how much is my fault and those kinds of issues. We have taken that evidence from them as the value of an apology in their proceedings. You did not ask them at that point any questions at all about whether or not they felt that it was possible to change their processes. I do not think that, to be fair, it would be for the officials to do that. The issue here is that an undertaking was given to proceed with an SSI that would reflect the unintended consequences of the application of the Apologies Bill and act to those kinds of regulatory processes. At that time, those identified were the health regulators, but it became clear that there were two others who have said that they are in exactly the same position and share the same concerns. Therefore, that is why we have framed the draft SSI as it is before the committee today. As my point is, the SSI is not the only way to deal with unintended consequences. It is possible to look at other parts of the regulatory process to work at that. It seems odd that it has been presented as the only way to get around some of those hurdles. I refer the member again to the undertaking given at stage 3 that we would proceed with an SSI in the context of the due diligence obligation on Government to proceed with drafting legislation in a coherent manner in the context of that work. It became clear that two other regulators were in the same position in essence, and hence the rationale for excluding them would not be evident. Therefore, the list includes those 10 regulators as set forth in the draft SSI. I am a little concerned that there has been a suggestion that apology is establishing the extent of fault. Apology does not establish fault—certainly not under section 3, and it would need to be given under section 3. That is a precise definition in order to be covered by the Apologies Act. Minister, perhaps it would help when we could cut through this before I bring Mary Fee in. You give one example in your letter to me. In a scenario where an individual teacher or social worker comes forward and apologises for past sexual abuse of a child, I would be alarmed if questions were not asked about their suitability to continue to practice their profession and the GTCS and SSSC were unable to have access to relevant evidence. If they came forward and apologised for past abuse, it would be a criminal offence, and their apology would not apply. Can you give me another example of where the GTCS being exempted would be disadvantaged? I have to say—perhaps it would be useful for the record—that the point that I was making there was in direct response to a letter that I received from your convener on 3 May, when you said that you raised that specific issue. It was responding to the specific issue that you yourself raised, so I hope that that is clear. What I am trying to say is that I do not want you to— Well, if you want me to read out your letter in my whole response, I will have you to do that. Just the point that you are responding to, that would be helpful, minister. Well, you have written a letter of 3 May wherein you suggest that this bill would cut across, in effect, in circumstances where abuse occurred in settings, including boarding schools, other private schools and other institutional settings, where social services were involved in the child's case. What I have been trying to say is that, if you look at the position of the interaction process, which in turn was the genesis of the Apologies Act, although the Apologies Act is not simply concerned with survivors, but if you look at the genesis, the genesis was to facilitate institutions being able to apologise without fear of civil litigation. This SSI does not cut across that in the slightest. This SSI is concerned with individuals who are members of the relevant professions that are listed in the SSI and the fitness to practice proceedings that could be conducted against them. That, I think, is again important to stay again for the record, because this SSI does not cut across the ethos of the interaction process in the slightest. I think that the bit you are referring to is that it is only hard to me that I have received more and more correspondence, and I have some pretty rented stuff from a boarding school, where, if you exempt the GTC, this will never see the light of day. Can I just go into it? Oh, I think that's that. I may say so. I think that that would be... From survivors, if you would just... You have an opportunity to respond, minister. I've listened very patiently. The correspondence from the survivors of childhood sexual abuse regarding the current Limitation Scotland Bill is that exempting those two bodies will seriously disadvantage survivors who are seeking an apology for child sexual abuse. If I could follow that up with what quarriers say, the exemptions of the GTC and social work would create classes of discrimination where some survivors may receive an apology but others do not, and that is the crucial point. There were serious failings, where there were serious failings, of both of those organisations in their duty of care to pass victims of historic abuse. So it's the duty of care, not the direct responsibility somebody is saying, I was responsible or was involved in child abuse. That would be criminal. It's the third party apology and the potential of a duty care. In response to that, those were serious failings by both of those organisations in the duty of care to pass victims of historic abuse, and the Scottish Government is compounding that now with those exemptions, the third party exemptions. I'll bring Mary Fee in. I think that we should wind us up. Did you want me to reply to that? Yes. I hear what the member says. I think that there are a number of important issues to address here. First of all, the SSI applies to those 10 regulatory bodies. Within that, it applies to their fitness to practice proceedings, and that is the scope of the exception. It does not cut across the institution concerned, be it a school or local authority, whatever it does not cut across their ability to apologise. I think that that has to be made very clear indeed again. The limitation bill does not have any impact here whatsoever. The limitation bill sits within the general law of civil law of Scotland, and what it will seek to do is to lift the three-year time bar in the circumstances that is described in the limitation bill that we have debated in committee at some length and also in the chamber recently, on 27 April. There is no cut across the limitation bill whatsoever. The idea that the GTC would be complicit in any suggestion that past behaviour should go unchecked or whatever the suggestion was, I may have picked up the member incorrectly, is unfair. What we should recall here is that we are looking at regulatory proceedings, fitness to practice proceedings, conducted by those 10 bodies. We are not looking at anything wider than that. We should just say again for the record to assure survivors that the ability, as foreseen in the interaction process, for it being made easier for institutions to apologise, to acknowledge what happened under their watch, under their duty of care, that, as regards the position of the SSI, is not impinged on in the slightest. It is not cut across in the slightest and I want to again provide that reassurance to survivors who may be watching this morning. I absolutely understand the rationale behind the exemption for health organisations and the duty of candor. That was something that was accepted as the bill progressed through Parliament last session. I think that to include two further regulatory bodies is moving away from the general principles of the bill. I have a particular concern in relation to the Scottish Social Services Council, because if we think about the importance and the relevance of the Apologies Bill, and I do not think that anyone sitting round this table could underestimate the impact that an apology can have for a survivor on their wellbeing and their mental health, and the importance that they placed in the Apologies Bill. My concern would be if the Scottish Social Services Council were included, and perhaps the minister could give me some assurances on that, I would have a huge concern if a regulatory body could use that legislation to prevent them giving a survivor an apology, or if a survivor could look at that legislation if the exception includes the Social Services Council and the GTC, they could look at the legislation and think about, I cannot get an apology because this organisation is exempted, and if that is the case, if we fail one survivor, we have failed every survivor. I understand where the member is coming from and I wish to provide the reassurance that the member is seeking. I think that we have to go back also to the passage of the Apologies Bill and firstly what was the basis for even talking about at that time accepting the fitness and practice proceedings of the general medical council and the nursing midwifery council, and in fact it was not to do with the duty of candor. That was already the subject of a separate head of exception by way of the exception that is actually framed on the body of the bill itself. It was seen at that time that as an additional head of exception you would have to have something that dealt with these fitness to practice proceedings, as otherwise there was an unintended consequence in terms of cut across. That was how this came about. In terms of the concerns that the member has raised specifically about, for example, the social services council, those bodies encourage apologies to be made. All they are saying is that, as far as the Apologies Act is concerned and the way to be drafted and the way that apology is defined, they have a problem regard to the fact that, in terms of the act, the apology cannot be used in their proceedings if they are not accepted to the detriment of the individual, but in certain circumstances it is not ruled out that that could be the case. For example, an apology has been made and an undertaking has been given to do X, Y, Z to remediate, but that remediation has not taken place. There are certain circumstances where an apology can be, as part of the whole evidence, before the body in that individual case be used in a way that the act would not allow it to be used. What those bodies are saying is that, if the act applies to their processes, it will cut across their processes. That does not mean to say that individuals cannot apologise. However, I think that, as the point that the convener or another member made near the start of our deliberations this morning, the idea that, if you were in one of those professions and you subsequently apologise for abuse, that there would not be immediately in train certain severe consequences. As far as the individual perpetrator is concerned, I think that we all accept that there would be fairly immediate and significant consequences for the individual perpetrator. That does not cut across, however—and I think that this is where I can give the member assurance that she is seeking quite rightly—that it does not cut across the ability of the institution, so the school, the local authority in terms of its social services department or whatever, to issue an apology without fear of reprisals under the civil law. I think that that is where perhaps some confusion has arisen. I hope that I have been able to offer some assurance at least to the member. I will ask very quickly if this change is not made, what will take precedence, the regulations of those organisations or the relevant sections of the Apologies Act? They realise the difficulty, because an undertaking was given on the floor of the chamber of the Parliament that the convener has read out. Obviously, we would need to reflect— For health organisations. I think that we have made that quite clear. The undertaking was encompassing the health regulators that were anticipated at the time, so question marks would arise about the other health regulators, I guess. That is one possibility. We would need to reflect further, because undertakings were made on the floor of the chamber of the Parliament to third-party organisations in Scotland. As a good Government exercising reasonable governance and good faith, one would have to consider where we went next with those. However, I am hoping that the committee, having heard responses to their questions, which raised a number of concerns. Quite rightly so, I hope that I have managed to address those concerns this morning. You do not know whether the Apologies Act would apply or not. We would have to take stock and consider what we do next, but it is difficult given that an undertaking was given to the chamber and therefore to the country and the floor of the Parliament during stage 3 of the bill. It was accepted, because stage 3 was passed unanimously. Can you take any legal advice on that point? We obviously always act within our legal advice and we will continue to do so. Obviously, I cannot, as a Government Minister, go into any particular legal advice, because I am not allowed by convention to do that. I am sure that the member will be able to do that. I know that. That was not what I was asking. I was asking you to confirm whether or not you had taken legal advice on this point. On which point? On whether or not the Apologies Act would apply to those organisations. I think that we should see what happens. I think that I am also constrained in explaining whether the substance of advice and the advice that is taken is the convention that applies to ministers. If that is not the correct application of the code, I am prepared to stand corrected. I think that we would have to reflect on where we go, because those organisations in good faith have treated with the Government. If the view was that some are to be accepted, but not others who have put forward exactly the same rationale, we do get into a difficult position. It is a different rationale, although surely you would accept that for non-health-based organisations. No, it is essentially the same rationale in terms of the fitness to practice proceedings, and that is what I have been trying to explain this morning to the committee. I think that we have got as far as we can go with the discussion. Minister, do you want to make any closing comments? I have hopefully addressed the issues that I have been raised. Agenda item number 3, support and legislation, is formal consideration of the motion in relation to the affirmative instrument. The delegated powers on the law reform committee has considered and reported on the instrument and had no comment on it. The motion is that 05334, that the Justice Committee recommends that the Apology Scotland Act 2016 accepted proceeding regulation 2017 draft be improved. I invite the minister to speak and move to the motion. Formally moved, convener. And do any members wish to speak? John Finnie. You and I were involved in the process right from the outset, and we know that difficulties were identified. Indeed, that was incorporated in the discussions at stage 3, which you have been alluded to with an undertaking to examine. Whatever reservations I may have about the two organisations, the presentation of their evidence, it clearly would be wrong to ignore what was emerging information, and that is why we are here now. I am very concerned about the perception of dilution, but I think that it is important, and it is not necessarily apparent from everything that I have heard, that people do understand the purpose of the legislation that was passed. No one can be compelled to make an apology. It is very much an individual thing. To the extent that institutions can, I believe that many institutions should continue to make apologies. I have represented police officers at various forums, and in one instance, I should stress entirely on an individual capacity, I represented a social worker at a hearing, so I am familiar with some of the machinations of how things can end up being presented. I am disappointed that we do not know, but I am reassured that the minister is going to come back on whether institutions have reviewed their processes in light of that information, because to me that is what a responsible organisation would do. It would be aware of the legislation that would respond accordingly. The suggestion and the phrase used are substantial prejudice that could apply if we are not to pass this. I think that we want the highest standards for public sector workers. I am concerned that any detriment to workers and that could result when we are not to pass this. For that reason, and with some reluctance, I am going to support the motion. I will put on the record the couple of things that I have taken out of this. I now have some substantially greater understanding of the background and where we are now. I take great comfort from the fact that institutions, schools, councils and so on are in no way deprived of the opportunity to make apologies and free from consequences of doing so under the provisions of your act convener. I hope that those institutions will take very close notice of what has been said here and continue to look for opportunities to bring forward apologies where it is appropriate. I think that the quarrier's input to the discussion has focused on institutions largely. Of course, individuals implement institutions positions, but I think that institutions must continue to look seriously at the appropriate apologies. It is clear that what is before us today as a committee leaves untouched the ability to make those apologies free from legal retribution as a result of having done so. That leaves the core of your very welcome act, convener, untouched, albeit in relation to individuals who are otherwise governed by regulatory bodies. We are striking a balance that I think is entirely appropriate. I just wanted to echo a point—I think that it was Liam McArthur who made the point about the human rights organisation. I would have been more content this morning if we had a view from them on the impact of that. I cannot say that I am confident with the inclusion of the additional organisations over and above the health organisations. Liam McArthur. Thanks, convener. I echo what Stuart and John have said in terms of the value of exchanges this morning. I think that probably just reiterating what I said previously, I know that the minister has given a commitment to engage with some of the other regulatory bodies, but as a committee it would be a helpful exercise for us either to do that ourselves or monitor very closely the responses that come back from that. I think that it would appear that the understanding of the effect of the Apologies Act may not be as clear and uniform across the board as it might be. We have probably got a useful role to play in trying to push that out further. I will just make a contribution to the effect that this whole act came about from the cross-party group and survivors of sexual abuse. It came when Professor Miller came to talk to the group and he explained that there was an apology act in legislation in other countries and that it could be very welcome and very valuable to survivors in giving them closure in acknowledging that abuse had happened and crucially perhaps looking to make sure that it did not happen to others. That is the risen dector behind the act. During the passage of the bill it became clear that the Government was introducing a duty of candor. That would be for health professionals and that that duty of candor meant that they would apologise. That would be expected as part of the duty of candor and that that apology would be admissible in civil proceedings. During those proceedings, the passage of the bill was clear and it was stated that it was obvious that the duty of candor provisions and the Apologies Act provisions could not co-exist. On that basis, health professionals were exempted and that is taken as a red today, that there are eight people on this list who are health provisions. However, the limitations act, as the minister says, does remove a barrier, a time barrier to survivors. It has also been recognised that a lot of people will not go down the legal route and have no wish to go down the legal route. All they want is an acknowledgement, an expression of regret and perhaps to make sure that it does not happen to anyone else if they possibly can. That is what the Apologies Act does. I refer the minister again to the submission from the former boys and girls abused in quarriers homes where they go as far as to say that it would appear that the survivor community of the Scottish Government has broken a greed commitment promise to implement the elements of the interaction plan because, again and again, the Apologies Act is looked at as an alternative and effective alternative for those people. By including, again, I reiterate to the minister, the GTC and social work, the Government is not only going back on what it said previously about only including professionals because of the duty of Gander, it is also now discriminating again against survivors by creating two classes, some where our apology can be given and now under the GTC and the SSSW where it cannot. While the minister and Stuart Stevenson are referred to this, he is comforted that institutions and schools can give an apology, breaks and mortars do not give an apology. What gives an apology is a person and, under the provisions in the SSI, the minister is now deterring people from coming forward with that apology because they would be perhaps possibly deemed to have a duty of care that they had not exercised. If any possibility is going to act to their detriment, which is what section 1 is all about, they will not come forward with that apology. Under section 3, the definition in no way talks about fact, talks about any fault, the apology under that is not admission of fault. On that basis, if no one else wishes to speak and I do not think they do, I invite the minister to wind up. I appreciate your time is marching on for the rest of your committee work this morning. Many members have made very trenchant points, which I have listened to very carefully. I would just pick up on one final point, which is to say again for the record, because I think that it is very, very important to survivors who may be listening this morning or who may read the record of this meeting in due course, which is to say again that this SSI does not cut across in any way, shape or form the ability of institutions to apologise. Indeed, institutions are breaks and mortars and it would be a person exercising that opportunity on behalf of the institution. However, that is not concerned with that, it is concerned with fitness to practice proceedings and the only circumstance that would encompass was where the individual was the perpetrator. Of course, if the individual were the perpetrator, there would be other consequences, which I think that we recognise would kick in fairly quickly. That does not impact on institutions to take up the facility of the Apologies Act to apologise and, indeed, I would encourage that in the interests of the survivors. Receiving the acknowledgement that they deserve and, of course, the justice that they deserve. I think that I would probably, in my comments there, convener. I now put the motion. The question is that motion 05334, in the name of Annabelle Ewing, be approved. Are we all agreed? No. Show of hands. Those Against. The result is those in favour, 7, those against, 4. That concludes consideration of the affirmative instrument. The committee's report will note and confirm the outcome of the debate. For information, the committee has until the 23 May to report to the Parliament. Given that this has been a very long and my own personal interest in the debate, I propose that the report and the discussion, the final report, should be passed to all members so that they can approve it. Thank you for that. I thank the minister for attending and suspend briefly to allow the minister and her officials to leave. Agenda item 4 is our opening evidence session on the domestic abuse Scotland bill with the Scottish Government's bill team. I welcome Phil Lamont, bill team leader, Kevin Philpot and Patrick Down, bill team members and Catherine Scott, director of legal services with the Scottish Government. I refer members to paper 2, which is a note by the clerks on paper 3, which is the SPICE briefing. I remind members again that the officials are here to explain policy, not to defend it. With that, I invite questions from members. The first was about the non-harassment orders. When we held our inquiry into the Crown Office and Procurator Fiscal Service, we heard direct evidence from victims of domestic abuse, and we received written evidence and this call for evidence regarding that as well. They were requesting that non-harassment orders be imposed and that there should be in addition to them being considered in all cases. We have also seen that in relation to what has been happening in England and Wales. Sorry, that is a different point. In relation to the non-harassment orders, how would you respond to the evidence that we have received in relation to that and the requests that they should be imposed in all cases? Helpful to confirm what we are doing in the bill, which is to change the current position, which is a general provision that applies in respect of non-harassment orders, so that at the moment the way that it works is that any offence involves misconduct towards another person. The court has the ability to impose a non-harassment order in order to protect that person from the perpetrator, but that requires an application by the prosecutor. The court at its own hand cannot impose such an order. It has to have the application first. What we are doing in the bill is changing that general provision specifically for, if I approve my Parliament, the new domestic abuse offence and the existing domestic abuse aggravation that was created last year in the Abuse and Behavior Act, so that an application by the prosecutor is no longer required and that the court must consider whether to impose an order. From your question, we are aware that some stakeholders consider that the bill perhaps should go further and actually not only should the court consider, but it should just impose in all situations. We can understand where that desire comes from, but we do think, given how we have approached it in terms of the bill, that the correct approach is to still leave discretion with the court, not least because there may be some cases involving domestic abuse where the circumstances are such that, for a variety of reasons, a non-harassment order may not be the right approach to the court to make. We think that discretion should always lie with the court to understand the facts and circumstances of the case and make the decision. However, what we are doing in the bill is saying that the prosecutor no longer has to bring it to the court's attention. It is for the court themselves because it is a domestic abuse case to make that decision. I think that it was just particularly concerning because, in the evidence that was supplied, in the written evidence to the committee, of 502 cases—well, this was Hamilton's shed of court in particular that is mentioned there—only 33 non-harassment orders were issued. We heard of the experience of victims then having to take the process to the civil courts and take the route that way, which is a lot more expensive. It is quite concerning that that is the case and that very few are issued so far. My only concern would be that, if it is left to the discretion of the courts without that going any further, we could still see relatively few non-harassment orders being issued. I suppose that there is a question about what proportion would you expect in domestic abuse cases. There are probably arguments, and I am sure that you will hear evidence from stakeholders in due course. What we think we are doing in the bill is giving what I would suggest as a heavy hint to the court about how to approach non-harassment orders in the context of domestic abuse cases. I accept that it does not go as far as some stakeholders might like in terms of requiring them to impose, but it certainly moves on from the current position, which is that the court cannot do anything until the prosecutor applies, and we are saying that that is no longer the case. In relation to some of the other evidence that we received—for example, children first—they talk about even taking that a step forward and extending non-harassment orders to include children specifically. I was just wondering what your views were in relation to that evidence. I think that that is a reference to the way that the bill is drafted. The provision that relates to non-harassment orders links back to the existing provision in the criminal procedure Scotland Act 1995, which refers to a non-harassment order being available where a victim is subjected to misconduct. There was a court case a couple of years ago where a court applied a non-harassment order in terms of a partner who had been abused, but also their children. That was overturned on appeal because it was found that the court had gone too far in terms of interpreting the existing law. What we are doing in the bill still limits it to the partner, or ex-partner, or the direct victim of the abuse. I think that what children first and one or two other stakeholders have raised have suggested that, because we have a child aggravation in the bill, perhaps the policy could go further so that where the domestic abuse offence is proven and a child was involved in that abuse, a non-harassment order should also be available in the context of those children. That is certainly something that we are happy to consider your own views and stakeholders as you go through stage 1 scrutiny. Perhaps the provision in this area could go a bit further. That is something that we still have to explore as we go through. Another point that is raised is about the training of police forces. Sorry, that was the example that I was getting confused with earlier, about the forces in England and Wales. Eight out of 22 police forces in England and Wales have not charged a single person with the offence according to a freedom of information request. Nine forces have made two or fewer charges since the new law came into effect in England and Wales in December 2015, and it lists those authorities there. There is a concern that, after the new offence has been introduced—obviously, there have been relatively few cases taken forward—I would just be wondering what your views were on that and how we can ensure that, if the bill progresses and the legislation is passed, that there is adequate training in place for all police officers and greater public awareness of the changes that have been made? That is a fair point. I do not want to speak for Police Scotland. I am sure that it will give evidence in due course and explain how it will approach ensuring that officers on the ground are aware of what is contained in the new offence if it is approved by Parliament. We have worked with Police Scotland in developing the offence, so Police Scotland is certainly well aware of the new offence that is contained in the bill. It also assisted us in the development of the financial memorandum, which includes estimates for costings for training of police officers. If Parliament approves the new offence, we will not rush the introduction of the offence. The reference to England and Wales is its course of control offence. I do not want to speak for what has happened down there, but in terms of working with the key stakeholders in Scotland, we would make sure that, as much as possible, Police Scotland is entirely aware of the timeline so that it can prepare the training of the officers so that the ones who are dealing with domestic abuse on the ground are aware of how the new offence works and what things are new that they need to look for in terms of the investigation of domestic abuse, the things that the Crown Office and Lord Advocate will give guidance to Police Scotland about how the investigation of such cases—again, I am sure that that is something that you will want to explore with the Crown Office when they give evidence. We are certainly working closely with those partners so that they have awareness and they are very clear what is in the bill as it stands. We will see how it goes through the parliamentary scrutiny. The risk that you raise about what appears to have happened down south is one that we are very well aware of, and we obviously want to avoid as much as possible. In just one final question, and a few submissions, there had been mentioned that the law should be compliant with the Istanbul convention, so if the legislation is passed, will it be compliant with the Istanbul convention? Again, I think that that is a reference to part of the Istanbul convention contains a clause or a provision that requires what is called extraterritorial jurisdiction on certain offences. Obviously, the Istanbul convention was agreed a few years ago, so the offence postdates that, but if Parliament does agree it, there is a question about whether the offence should carry extraterritorial jurisdiction so that, for example, a couple who—there are incidents of domestic abuse that are taking place in this country, but they happen to travel to another country, perhaps in holiday—could they also be included so that a Scottish court could heal here a prosecution of the totality of the abuse? Again, with that suggestion, we are happy to hear your views in due course, whether you think that the bill could be extended in that way. Extritorial jurisdiction under the criminal law is an exception to the normal approach of those things, but there are certain offences that currently have extraterritorial jurisdiction. Clearly, in the context of the Istanbul convention and the UK Government's considerations of whether to ratify it is a very relevant consideration that I am sure you will want to consider in due course. I just wanted to pick up on Mary's question about the child and the effect of domestic abuse on children. There have been concerns from a considerable number of the children's charities that perhaps the effect has not been recognised enough, and the Government has sought to address that by providing an effect saying that the offence will be aggravated where it involves a child. I just wondered if your views on whether you think that it is strong enough. Do you think that an aggravator is addressing the children and the effect on children enough, given that we all know the damage that domestic abuse has done to children? The Scottish Government recognises that growing up in an environment in which domestic abuse is taking place can harm children. The aggravation is intended to go in a way to recognise that and ensure that children were either involved in the abuse or that behaviour was directed at them in the course of the abuse order that they were present when the abuse was taking place or that they saw or heard the abuse is formally recognised by the criminal law. In terms of how it might go further, it is worth remembering that there are criminal offences concerning child abuse and neglect that would continue to apply whether they occur in the context of someone who is abusing their partner and those children or just the children. I am aware that some of the children's stakeholders think that there is a need to update the law, reform the law to reflect almost a kind of domestic abuse of a child type offence. In terms of whether it could be included in this bill, our concern was that the definition of abuse that we have come up with is very much focused on behaviour that would be abusive when directed by someone towards their partner or ex-partner and to extend that to the parent-child relationship or partner of parent and child relationship without further consultation and without probably adjusting the definition to take account of the very different nature of that relationship would not really be appropriate and could risk criminalising behaviour that should not be criminal. It is perhaps also just worth saying that in response to the two previous consultations that the Scottish Government did, the first one was on the general principle of having an offence. One of the questions that we asked was what relationships should be covered. While there were certainly views offered that it should go beyond what is ended up in the bill, there was quite strong support for an offence that was related to partners and ex-partners because there is such a particular dynamic to that type of abuse. That is clearly what we have provided for in the bill. In addition to what Patrick Stewart said, it is probably worth drawing the committee's attention to the statement that was made by the Minister for Early Years and Child Care at the start of March in Parliament on the child improvement protection programme. One of the elements of that statement was to look at the section 12 offence in the Children and Young Persons Act 1937, which children, stakeholders and others consider needs to be updated to reflect, among other things, on the modern experience of what we understand the abuse of a child to be. That commitment has been given, so picking up on what Patrick Stewart said about the difficulties perhaps of adapting what is in our bill, there is a process under way for the Scottish Government to look at that area. If you would consider clarifying the policy that you are taking in the bill, just to make it a little bit clearer what you are telling us here, just to allay some of the concerns from the charities that have not just been put in there as an afterthought? I certainly would not suggest that it is. Section 4, the aggravation is a very important provision. It very specifically tries to acknowledge the harm that can be caused by domestic abuse on a child. I accept picking up on Patrick Stewart's point, which is that if there is direct abuse of a child, that can already be prosecuted, potentially under different laws. However, what the aggravation does is very clearly say that if a perpetrator undertakes domestic abuse, they have committed the new offence. However, in committing that offence, they either use a child in some way by directing behaviour at it to get at their partner or make sure that they commit the abuse in such a way that the child is aware that it is present and that it is taking place, that can be harmful. What the aggravation will do, if proven, is require the court to consider whether or not the sentence that otherwise would have been imposed should be enhanced, which we think is an appropriate way of acknowledging the harm that such abuse can have on a child. I totally understand what you are saying. I am just wondering if we could maybe just strengthen it a wee bit in the wording. You briefly mentioned the question that I was about to ask you, because it was raised as a concern during our preliminary evidence sessions. It is about coercively using a child within a relationship to cause harm to a partner. Will that piece of legislation cover that, and will it be explicitly stated that that will be deemed as domestic abuse? I think that Patrick May might want to pick up, but I will just mention briefly about getting into the technicalities of the bill. Section 2 to B is about a definition of what is abusive behaviour, which is one of the essential elements of the offence. If you look at section 2 to B, the definition of abusive behaviour includes behaviour directed at B, i.e. the partner or ex-partner, at a child of B or any other person. The inclusion of the words at a child of B is an attempt to be very clear that we are aware that one of the most common ways that abuse can be perpetrated, if it is not directly at the partner or ex-partner, it is through the child or children of that person. That is why those words appear. Strictly speaking, you could argue that any other person covers children, so we have put that in specifically to give a very clear signal under the law. Our understanding is that it is one of the most common ways that abuse can be perpetrated through a third party, and that is why we wanted to put that out in the face of the bill. I know that the serious crime act 2015 does apply more generally, so I appreciate the two consultations that have taken place in relation to the specific legislation that has come to a different view. I am a little unclear as to why that is the case. Is it the view that, were it to take a broader definition of abuse in a domestic setting that could involve children, but equally it could involve elder abuse a coercive or controlling relationship with a parent or a grandparent in a household? Was it felt that, by including those sorts of scenarios, somehow it dilutes the impact or its ability to strike at those instances of abuse of a partner or an ex-partner? What was the rationale for it? Just to clarify, the Serious Crime Act is wider, as you say, in that it applies not only to partners and ex-partners but to other members of the same family living in the same household. As you say, it would cover potentially abuse of a grandparent if they were living in the same household, abuse even between adult siblings. The reason that we have taken the approach is that we think that, certainly based on the evidence from stakeholders during the two consultations, there is a particular form that abusive partners take that is different from those other kinds of abuse. It would also keep the definition of abuse in line with the Scottish Government's wider definition of domestic abuse. I think that it is reasonable to say that the particular kinds of coercive control that can happen between people who are or have been in an intimate relationship tend to be different from abuse between adult family members. I appreciate that there is a distinction. However, in a sense, what I am not clear about is why in terms of bringing forward legislation that covers both areas where there is already provision within the law as well as extending it and why the opportunity has not been taken to cover those examples that may be less in number. We are absolutely different in nature, but, nevertheless, by any definition, it could be described as abuse within a domestic context. Obviously, we did, to a certain extent, follow the views that were offered in the consultation, which I appreciate not universally, but there was relatively strong support for restricting it to partners and ex-partners. The way that we have approached it, I think that we are certainly in section 2, which contains what we call the list of effects, in the same way that we do not think that that would be—you can just adapt that very easily to the context of abuse of a child. I think that it would need some work, but that is not to say that it is not possible to do that. I think that we are aware, however, more generally that this offence is quite a novel offence. There are certain elements of it that I am sure will be scrutinised very closely in the coming weeks. We and the ministers were keen to focus it on the established understanding of domestic abuse in the context of partners and ex-partners. I take what you are saying and the explanation for it, I understand. What you have got back through the consultation is clearly steered in a particular direction. The risk, I suppose, is that there may be those who are arguing a different case, many each concern would be an obvious example. There may be others whose voice within that is not necessarily as clear as the numbers articulating that position, and perhaps not as numerous, but nevertheless in terms of the opportunity that this bill presents. The arguments that they are putting are pretty compelling. They are being set aside at this stage because of the overwhelming numbers that are arguing for a more targeted approach in terms of the legislation. That seems perhaps best a missed opportunity, but possibly even leaving older people to find themselves in a domestic abuse situation at heightened risk. Our focus is on that at the moment for understandable reasons, but while we are focused on that, inevitably we are not focusing the attention on other areas. I would not necessarily disagree with anything that you have said. I suppose that coming back to this being a relatively novel offence, perhaps part of it will be to see how it actually, if approved by Parliament, works in practice so that the lessons can be applied to different situations in terms of, for example, different relationships. I think that that probably goes for potentially looking at domestic abuse of a child, domestic abuse of, between siblings perhaps, I do not know, elders, vulnerable people who are living with parents. I think that there are potentially lessons to be learned, but obviously we have, as you have suggested, have generally been guided by the general view from stakeholders, which is to focus on the established definition of domestic abuse, and that is why this is an offence of domestic abuse. I do not think that the Government would, and I do not want to speak for ministers, I am no doubt that you will explore with the Cabinet Secretary in due course, but certainly it is not about closing the door, but this is what we are doing in this bill. I will just touch on briefly one of the other distinctions between the Serious Crime Act 2015 and the approach that has been taken in this bill in relation to behaviour that does not, in fact, cause a partner, an ex-partner, to suffer physical or psychological harm, whereas the Serious Crime Act, as I understand it, requires that harm to be committed. Maybe explain what the rationale is for, in a sense, having a crime where the harm hasn't yet been committed, which to some extent I think to delay a person probably would seem the logical approach. The test that is in the bill is whether the accused's behaviour was such that it will be—a reasonable person would think it likely—to cause the victim to suffer physical or psychological harm. In a sense, it is placing an objective test and it is focusing the court very much on what the accused did. Therefore, if the accused's behaviour was such that it was very likely to cause the victim to suffer harm, the fact that the victim might have turned out to be especially stoical and unexpectedly was not harmed by the behaviour would not prevent a conviction occurring. Equally, it ensures that there isn't as much risk of, for one of a better word, re-victimising the victim by forcing them to come to court and explain exactly how their partner's behaviour negatively affected or harmed them physically or psychologically in order to ensure that a conviction takes place. In many cases, I imagine that, in practice, the evidence-led probably will include that, but it ensures that it is not absolutely necessary in all cases for a conviction to take place. Is there not a risk, though, that it either sets the bar too low or that a case is brought almost as part of an exercise in exacting some kind of retribution within a relationship that is not functioning as it should but would necessarily be abusive solely in one direction? From my perspective, it strikes me slightly unusual for a situation in which there is no demonstrable harm having been caused. It is perhaps helpful, if I have just run through exactly how the offence can be committed. There are almost three tests that have to be met. The first is that the accused has to engage in a course of behaviour that is abusive of their partner or ex-partner. The second test is that the court then has to be satisfied that that course of behaviour is likely to cause the victim to suffer physical or psychological harm. Finally, there is a third test that the accused must either intend to cause that harm or else that they must be reckless as to whether that harm is likely to result. There is then a defence that the accused's behaviour was, in particular, in the circumstances of the case, reasonable. You mentioned this problem with counter allegations of people making allegations. Someone who is accused of abuse says, well, I was being abused. I do not deny that that is a possibility. Certainly, if you were to speak to the police or prosecutors, they would say that counter allegations are a feature in domestic abuse cases as it stands. It is not something that the police and prosecutors are unfamiliar with. They will have to have their ways of dealing with that and identifying where they think that there is merit in those allegations and where they think that they are being made maliciously and that there is not good evidence that somebody is in fact a victim of abuse. John Finnie? Thank you. It is just to pick up further on that point. There will always be a challenge around definitions. It is particularly in relation to the defence of behaviour that was reasonable in all the circumstances. The position of Scottish Women's Aid is that the defence might risk providing, I quote here, legal cover for coercive behaviour under the guise of reasonabilists. What thoughts are given around the challenge of that? I know that everything is about interpretation, but that seems to be at the nub of a lot. I think that, as you say, the exact definitions and meanings of individual words are a tough area around that. They are almost inevitably in order to ensure that behaviour that should not be criminal is not inadvertently criminalised, which is part of the purpose of the reasonableness defence. There will always be cases where somebody who is abusing somebody will try to make the case that their behaviour was in fact reasonable. In those cases, it will be for prosecutors to try to disprove that that was the case and to show that the claim that an accused behaviour was reasonable is not in fact the case. Perhaps, in relation to what the committee did recently about sexual abuse in a way, we did private interviews with survivors. It was quite a harrowing testimony, and in relation to one gentleman that myself and others interviewed, what struck us was that some things that we found pretty horrendous, because they were, quote, normal, the individual did not himself see them as abusive. Are you confident that that is going to get picked up in the way that this is laid out? I know that that is a big ask, but I am just going to wait. I think that, perhaps in some ways, the biggest barrier is that the victim has to recognise that what they are suffering is not normal and that, to some extent, is about a public awareness effort that might be required even when the new offence comes into a force. In terms of police and prosecutors being aware, I think that that is perhaps much less of a problem in that they will be much more aware that, just because a victim might conceivably have been conditioned to see very abusive behaviour as somehow normal, it will not seem normal to everyone else. In some ways, the biggest barrier there is encouraging that initial reporting to the police, so that abuse can be identified and prosecuted. That is one of the policy goals of the legislation, which is to try and reflect within the offence our modern understanding of what domestic abuse is. At the moment, individual incidents of domestic abuse have to be prosecuted. If they can be prosecuted together about separate charges under general legislation, certainly the relevant effects that we have included in section 2 on the effects that behaviour can have on the partner or ex-partner. One of the benefits of that, in our view, is that it perhaps will help people to understand that I am being abused. I know that they probably will not study the words on the page, but organisations such as Scottish Women's Aid and others can help to show them that the criminal law reflects that I am being abused in a way that, at the moment, some people may not even recognise it, as it has been suggested. At the very least, they may recognise it, but they do not think that the justice system is going to respond appropriately. That is one of the aims of trying to capture within the offence the totality of what domestic abuse is. Police Scotland has done tremendous work with serial offenders going back at abusers who have abused a series of partners over a prolonged period. Is there any element of that, particularly with regard to the coercive behaviour that could have a retrospective application? I think that the short answer to that is no, in that, as a general principle, you cannot criminalise behaviour that was not criminal at the time that it took place. I think that behaviour that occurred before the offence comes into force would have to be prosecuted using the law that was in force out of that time. However, you might want to speak to the prosecutor as if you will take evidence from them later as to whether they think that there would be any scope to liable behaviour that would clearly be criminal under any law using the single offence, but I think that, even there, they would probably be very reluctant to do so. The law that was in force at the time that the behaviour took place has led to it having taken place. I just wanted to follow up what John Finnie has raised in relation to normal and see if we can see the distinction between what is normal and what is normalised. In other words, if behaviour that anyone overwhelmingly outside the relationship would regard as abnormal but because of the nature that the relationship has within the relationship become normalised to seem normal, would that process of normalisation of what people outside the relationship would regard as abnormal be in and of itself some potential evidence of the abusive nature of the relationship? That is a bit so Humphrey-ish, so hopefully you get my point. I certainly think that, in terms of raising awareness, it is not just about raising awareness with people who might directly be victims of abuse, it is also those who know family, friends, etc. They can perhaps see, as you have suggested, something that the person who is at the centre of it cannot see. The fact that, if the offence is approved, we think that it will become much clearer what domestic abuse is under the criminal law, and that should hopefully be an advantage. Of course, in that situation, as is the current case, there is nothing to stop someone to the authorities at the moment to raise concerns, and then it is for the police obviously to respond appropriately to look into the matter. I would not disagree with what you just said. Just to close it off, part of the policy intention is to empower those outside the relationship and observing the relationship to have a way of intervening to protect someone inside a relationship who does not realise the extent to which they are being abused. I would say that the bill does not do that explicitly, but through the awareness being raised of what is domestic abuse, hopefully that might be beneficial. Just to be quite clear, I was asking whether that was the policy intention. It is certainly the policy intention for potential victims themselves and those that may know potential victims. The Law Society, Glasgow Bar Association, the Scottish Police Federation, Andrew Tickle, who is an academic, have all expressed some uncertainty about the bill. One of the reasons that they did express some uncertainty was what they perceived as a lack of evidence. There is a gap in the law that requires to be closed. Can you comment on that? I do not know. The background to that is that there was a speech back in 2014 by the then Solicitor General who highlighted what she saw as concerns about a gap in the law in terms of domestic abuse and the ability of prosecutors to prosecute long-term course of conduct type abuse. As a result of that, in 2015, the Scottish Government did a consultation seeking views on whether stakeholders thought that there was a gap in the law. The message that came back from that consultation was a couple of things. Firstly, the reflection of the Solicitor General's concern about the problems of prosecuting long-term course of conduct domestic abuse, given the current laws that focus on individual incidents of, for example, assault or threatening and abusive behaviour. The second concern was that, although it was reasonably easy to prosecute, for example, physical assault or overtly threatening behaviour using the existing law, it was much more difficult to prosecute this insidious, coercive and controlling behaviour, this psychological abuse, and that only a change to the law would make that practical to do so and that it could not easily be done using the existing law. It is more or less spelling it out. In relation to the accused state of mind, the bill provides that the offence may be committed intentionally or recklessly, as some of the members have already alluded to. Can you expand on what that would mean in practice? Yes. The reason that we have come with the legal term mens rea of intention or recklessness is, to some extent, twofold. Firstly, proving an accused intent was to cause harm to somebody may be very difficult. They may always be able to turn around and say, well, I did not mean to harm them and it might be very difficult to disprove that claim. Secondly, if a reasonable person would think that that was always going to be the likely result of their behaviour, then it is almost irrelevant whether they intended to cause harm. If they knew or ought to have known that harm was likely, then it is reasonable that the criminal law should apply, regardless of whether it was their intent in their behaviour. I suspect that a lot of perpetrators of long-term abuse might, in their own minds, see their behaviour as perfectly reasonable. That is good to get on record. I just asked one last bit. Section 8 provides a maximum custodial sentence for 12 months under summaries of procedure and 14 years under solemn procedure. Can I confirm if that would be for coercive behaviour, of course, without an abuse element, a physical abuse element? Yes, it would be for—the maximum penalty would be for 14 years if it is prosecuted on the high court, obviously, because it would need to be on the highest level of court. It could be for an offence that, where the course of conduct or the course of behaviour was entirely—there was no physical element to it—clearly it would be for the court to determine what we have in mind there in terms of setting the maximum penalty at 14 years, which is an increase on what we consulted upon, which was 10 years, and there were a number of views. Some suggested that it was about right, some suggested that it perhaps should be lowered, and quite a few suggested that it should be increased. However, what we have in mind there is a course of conduct that might have gone on for years in a relationship. It might include physical abuse, psychological abuse and a mix of the two, where, in effect, someone has been living in that situation for year upon year upon year, and by setting the maximum penalty at 14 years, we want to ensure that the court has the sufficient power to sentence appropriately, so that is why we have determined at 14 years. It is obviously reserved for the most serious offences, but, in answer to your question, it could include an offence where the course of conduct is entirely psychological abuse, although I would add that it is sometimes quite difficult to think between what is physical abuse and psychological abuse, which is obviously quite a lot of overlap on occasions. If it does not start as a solemn case but it becomes clear that the sentence of one year is not going to be sufficient as the facts have emerged, I take its sentencing and can be referred upwards. Not in the scenario that you have suggested, because the summary court sits without a jury, so that you cannot take a case. It is only if it starts in a sheriff's solemn court, so it has a maximum penalty of five years as a jurisdiction limit. A case that starts in front of a jury in a sheriff's court and then the person is convicted and the sheriff considers that they need enhanced sentencing, they can remit it up to the high court, but you cannot take a case from the summary court. If it begins in the summary court, that is where it ends. A substantial obligation on the prosecutor is to make sure that it goes in at the right level. Following up on that, you explained well the rationale for why you have got to, where you have got to in terms of the 14-year maximum. Without appearing to draw too many simplistic parallels with the series crime act 2015, I have been told that the maximum custodial sentence there is five years. That seems quite a significant discrepancy. Is that because the series crime act isn't picking up that pattern of behaviour over multiple years? Obviously, I wouldn't want to speak for why it's been set at five years down south, but the air offence in Patrick O'Keeffe right here is only coercive control, so it doesn't include physical elements. Therefore, the example that I gave in answer to the question was that it could be a course of conduct that is entirely psychological abuse or psychological harm, but perhaps a more realistic example might be a mix of the two, where you have got very serious, perhaps violent abuse and also psychological abuse all wrapped up together in one course of conduct. We came to the view that five years would be insufficient. Indeed, following the consultation that we consulted on 10, that is why we determined for the bill introduction to increase it to 14. If it were psychological abuse, and I take the point that you are making about the way in which those can inflate, it is not beyond the realms that that could still find itself up around the maximum on the basis of the specific circumstances? Obviously, for a court in any given case, but we want to ensure that the court has what we would consider to be the appropriate power to sentence, and that's where 14 years has come from. I think that that concludes our questioning. I thank the bill team for providing evidence, which has helped the committee to inform the committee and for it to understand the bill. We now move into private session. The next committee meeting will be on Tuesday, 16th of May. Suspend briefly to allow the public gallery to clear.