 I welcome everyone to this, the third first meeting of the justice meeting in 2014. I said that I want to switch off mobile phones and electronic devices, even interfere with broadcasting when they are switched to silent. No apologies have been received. I beg your pardon, Alison McInnes has sent in her apologies. Item 1, I invite Gil Paterson, who is our new member of the committee, to tell us if he has declared any interests relevant to the work of the committee. Nothing further to refer, convener, could I refer the committee and the public to my declaration of interest for all to peruse? Thank you, that's in public in any event. Thank you very much. Item 2, committees invite to agree to consider what programme in private in our next meeting consider our draft reports on the draft budget 2013-16 and on the legislative consent memorandum of the serious crime building in private of future meetings. Are you agreed? Thank you very much. Now, we are going to move on to item 4 on the agenda with the leave of the committee as the minister has been delayed. This will be our evidence session on the draft public services reform inspection and monitoring of prison Scotland order 2014, which we are considering under the affirmative procedure. The committee will recall that we considered an early version of this instrument under the superaffirmative procedure last year. I welcome our first panel of witnesses and thank you for being so timious so that we can start with you right away. Bruce Adamson, legal officer at the Scottish Human Rights Commission, Joan Fraser, member of the Executive Association of Visiting Committees and Scottish Penal Establishments, Lisa McKenzie, policy and public affairs manager at Howard League Scotland and Pete White, national coordinator of positive prison, positive futures. We've received your written submissions, thank you very much, so I'll go straight to questions from members. John, Margaret, Elaine. My questions to Mr Adamson and maybe for comment from the other panel members is regarding the submission that the Scottish Human Rights Commission made in October 2012, Mr Adamson, in a particular paragraph there where you state, and I quote, the independence of the monitors is central to their effectiveness, and that's a requirement of OCAT. Is what we've got in front of us the proposal, does that indicate independence for the monitors? Can I say that your microphones will come on automatically if a question has been directed to you, and if anyone else wants to come in, just indicate to me and I'll call your microphone will come on. I know some of you have been here before and I don't need to tell you, but you may not have been. Mr Adamson, I think it was to you, was it? It was, thank you convener, thank you committee, good morning. That question cuts to the hearts of OCAT and compliance. OCAT itself does leave scope open as to how best to achieve compliance with it, but we do have now a great level of guidance from the subcommittee on the prevention of torture, but also through the work that colleagues of ours have done in national human rights institutions in relation to how they best achieve independence, and this is important because the optional protocol itself refers to the Paris principles, the UN principles on the status of national institutions, which relates to national human rights institutions, so there is a great level of guidance for us now. What I would say in relation to the order that is before the committee is that best practice in relation to independence in our view would dictate a different model which was accountable and appointed by the Parliament, but that's not the only way to ensure independence. Independence is a matter not just of the legislation but of policy and practice as well, and there are other safeguards that can be put in place and could be put in place around this order to guarantee independence. As a starting point, I would like to say that the Dignition welcomes the reference to OCAT, welcomes the commitments to OCAT that Governments made and would like to stress that, unlike other international treaties, OCAT is operational rather than standard setting, so what it does is provides an additional framework around the existing obligations, and so what we should be thinking about when we look at this order and what we're trying to achieve in terms of the prevention of torture and the protection of other human rights of prisoners is what's the best way of having a monitoring mechanism, what's the best way of doing that? There is a lot of progress that's been made, I think, in terms of having this kind of statutory framework and in terms of putting in place protections around the appointment, around the staffing, around the finances, but a lot more needs to be done to ensure that functional independence and operational independence is in place. A lot more needs to be done, please, with you said that there should be safeguards. Well, I suppose that the starting points when we look at the subcommittee on the Prevention of Tortures guidance and they talk about operational independence and complete financial and operational autonomy, and then we look at the best practice guidance that's been developed through organisations like the Association for Prevention of Torture and others, because the best practice guidance for independence of government that they suggest is a link to Parliament. If you don't have that, if you have appointment by ministers, or if you have a link to the Government, then you need to ensure that their additional safeguards are put in place in relation to appointments, would be the first point, that this means that you have a very clearly set out process for appointments in the legislation. It means that you involve the legislature, this Parliament, and civil society through wide consultation and how you take about that appointment. It means that the staffing needs to be done within the organisation, not externally. I think that a link to Scottish ministers is possibly problematic. Particularly in relation to a practice issue, the Committee Against Torture has commented in its last general observations on the UK about concerns that already exist in relation to the secondment of staff from parts of the public sector that are involved in the detention of people into national preventive mechanisms bodies, so we need to put in place protections about circumvents in terms of staffing, financial autonomy, there needs to be adequate funding in place in terms of being able to fully fulfil those functions and an insurance of expertise. It's a long way of answering your question. I suppose that what I'm saying is that if enough additional safeguards are put in place in terms of the way in which that operates, it could work. Is it best practice? No, it probably isn't. I would like to add a few practical examples that illustrate the way in which the proposed system, as in the order, would be less independent in terms of the monitoring than it is at the moment, and certainly much less independent than in the rest of the UK. So, first of all, the monitors will be appointed, managed, evaluated and instructed by the coordinators. The rota visiting to the prisons, which at the moment is decided entirely by the monitors, will be decided by the coordinator in agreement with the governor of the prison, which is a truly staggering proposition. The rota visits will not be entirely unannounced as they are at the moment. The unannounced visits would be in addition to visits that would be on the rota agreed with the governor. Also, the annual reports from the monitors would not be completed by them any longer, but by the coordinators who are paid public servants. We have opened it up to the general question of independence throughout, and I know that other members would want to come in. I will ask Margaret to come in next, followed by Leanne. I am sure that others will pick up. I will expand on the unannounced visits. I will let Margaret to come in next. I think that it has just opened up the whole thing, but how independent is it now? Margaret Troll and by Elaine. I think that just commenting on that, we have now got three possible types of visits, whereas before there was one, you could go anytime unannounced, which does not seem an improvement. However, could I ask you in particular about how the order deals with complaints? I think that there is a real concern that this new provision would not gain the trust of prisoners, so if I could perhaps ask Joan Fraser to start with that. The complaints process at the moment, independent monitors, VC members, must investigate complaints from prisoners and must try and resolve them, and must then go back and tell the prisoner what the outcome is. That process was deleted in its entirety from the last version of the order, and has now, in the current version, been replaced by a provision that says that independent monitors may investigate matters brought to them by prisoners. It is not an absolute requirement. There is no requirement to go back and tell the prisoner what the outcome is. The means of access of the prisoner to the independent monitor are through asking—this is a very old-fashioned method, which should have been taken out and updated in the new legislation—to request to see a member of an independent monitor. The prisoner has to approach a member of the SPS staff and ask them if they can see a member of an independent monitor. Or they can ask to write to an independent monitor for which purpose the governor must provide paper. There is nothing that says that any of this is a confidential process, as it should be. It lies entirely on the SPS passing on the request. We know from prisoners that, just as with the internal SPS system, they suffer occasionally reprisals for placing in a complaint, if they ask to see a member of the visiting committee—sorry, an independent—yes, a visiting committee at the moment, the prison staff will sometimes make life a bit difficult for the prisoner. Things such as going to the gyms, the list suddenly is full, and they want to use the phone—it is not convenient, that kind of thing. The prisoner referred to it as being banned up, which is being treated like an idiot. You ask to see a member of the visiting committee, or you make a formal complaint through the SPS system, and there are consequences of doing that. Prison staff will routinely ask a prisoner why they want to see a member of the visiting committee, and they are not entitled to ask that. The way that we operate the system at Pullmont is a confidential process with a sealed envelope and a locked box in which the prisoner puts the request, and that comes directly in the sealed envelope to the visiting committee. That is the system that they have in England, where they have a process called applications, and that is really what ought to be in the order, but the Government, for some reason, have chosen not to do that. In relation to complaints, there is also a proposal that independent monitors should assist prisoners with the SPS internal complaints system if a prisoner so requests. We have no idea what that would amount to. There are 6,000 complaints into the SPS system every year. We know that from a BBC FOI request because SPS does not publish those statistics. It is impossible to say how many of those 6,000 prisoners might come to an independent monitor and say, could you help me with this? It is entirely likely that there are numbers of prisoners in the system who do not use the complaints system because of literacy problems. Who knows what number it could be, but the work could be considerable. Quite apart from the workload, what is worrying is the way that prisoners would then begin to view independent monitors as somehow being part of the SPS system, and it would undermine their independence. There is no doubt about that. Thank you. Mr White, followed by Mr Addison, wants to respond as well, Margaret. Thank you for the invitation to be here today. The process of submitting complaints for prisoners has evolved quite a lot in the past few years, and the SPS, it may surprise you to hear me say this, has improved the way that they have dealt with complaints a great deal. I think that the idea of independent monitors being seen as people who will take complaints could be reviewed and could be changed into the idea of prisoners having a chance to have a confidential conversation to clarify matters and to ask for help if the clarification does not work. I think that the conduct of independent monitors will determine how they are viewed by prisoners. They will have to develop a way of working that builds trust. That sometimes takes a personality rather than an order to make that happen. I think that the process of dealing with things as they arise is a good one, which is supported by the order, but not laid down in law. Necessarily, the word may be seen in a positive way that someone can help, not that they must help, because there will be different ways in which prisoners can voice their concerns, and sometimes it will be slightly mischievous, but generally it will be for the sake of getting clarification on a point. When it comes down to filling in forms for people in prison, there is a very good network of peer tutors who provide literacy and numeracy support, prisoner-to-prisoner, unarranged by SPS and helped by people on the flats. Some of the concerns that Joan Fraser mentioned just now may not be quite as severe as she suggests, but I also realise that there will be some concerns in that way. Can I just let Mr Adamson in before I just have wanted to know? Okay, right, right. Since Ms Fraser had raised it at the Pullman system, where it was in the Senildin envelope and anonymity was guaranteed, would you favour that system? Absolutely. Mr White. I would support that system, yes. Yeah, that's helpful. Sorry. That's okay. Mr Adamson, you want to come in on this as well. And to agree that I think that the system is exemplified in Pullman and in many other parts of the world. The system is a very good practice system. The commission did have quite serious concern with the previous version of the order, which seemed to treat the complaints of prisoners in the same way that you would treat any other public sector issue and not acknowledging that the particular vulnerability that prisoners are at. The new order where independent prison monitors may investigate complaints is useful, but we do share some of the concerns that some of the framework around that needs to be put in place very clearly. This is a requirement under OpCat and under article 21 that there is privacy and privilege associated with the communication between prisoners and the monitoring function. It's important that we have that locked in place so that prisoners feel confident that when they communicate with the various monitoring mechanisms that can be done in a way that is privileged in the context of privacy. I think that this links to the perception of independence as well. I think that this is one of the overriding issues that I think that we need to continue to focus on is that having a legislative framework that supports independence, having policy and practice that support independence, is absolutely essential as is ensuring the perception of independence, because without the perception of independence, the whole system breaks down very quickly. I echo many of the concerns raised by Joan Fraser. I also share the concern that Bruce said at the beginning about the idea of the roto being agreed by the governor. We know that having worked on this issue for a couple of years, I know that some governors are more cooperative than others. I don't know why that closes in there. I will call by John Finnie unless somebody else comes in between. Professor Coyle recommended a council of independent prison monitors that would be able to discuss progress issues. I believe that that is the situation in England and Wales. The proposal is for an advisory group that would be appointed by the chief inspector. I wonder if you had any comments as to what was preferable in terms of actually guaranteeing independence. The advisory group has its merits. I think that it is a good thing to assemble a group of independent experts if that is what they will be, but the order does not necessarily say that. The order says that they will be appointed by the chief inspector at his discretion for however long he decides and will be reappointed if he so decides. This was the body that the former justice secretary said that it would person proof and future proof the structure of independent monitoring and would replace the legislative rigor that we have at the moment. In fact, it seems quite unlikely that a group of individuals who owe their appointment to the chief inspector will always feel able to perform the necessary challenge functions. In terms of having an expert body on which you could go for advice, I think that that is a good idea, but it is very different from a council that is the model elsewhere in the UK, which is the body that enables independent monitoring to operate independently of government. Is that a knock-out issue, the fact that it is not independent? I am not sure that I am sufficiently expert on that. No, I have asked if everybody else wishes to comment on the fact that they are appointed. The prison monitoring advisory group is the auspices of the chief inspector, and it seems that there is too close a connection from what you are stating between the chief inspector of prisons and what we call prison visiting committees to now be independent prison monitors. The system seems to be tightening up and not allowing that independence to flow as it did before. Is that an issue for nobody else on the panel that it is at the behest of the chief inspector, good though he or she may be? It is a concern and a disappointment that there is not something in the order that specifies that the appointments to the advisory body would be done on an open and transparent public appointments basis. That is something that we did say in our most recent submission to the Government. As we also said in the submission, if you have three independent prison monitors and three prison monitoring coordinators on that advisory group, our feeling was that they ought to be there as observers. If you are sitting around a table and the majority of the people around the table are doing the job, how is the job being done? Are we happy with how we are doing the job? If a majority of the people on the advisory group are doing the job, are they the best people to say that we are not doing the job the best way we can? Is that what you are saying? Yes. I mean, I am not saying that they should be there, but maybe they ought to be observers on that group. You ideally appoint to an open process the remainder of that group, but that is not set out in the order. I certainly agree with that in practical terms. In terms of up-kick compliance, when we are talking about independence, we are talking about independence from Government and from the state, I think that one of the issues here is more a conflict of interest point in terms of that there are people that are wearing different hats in multiple roles, which is, I think, very important, and there possibly leads to questions around how broad and transparent the appointment process is, how pluralistic we are being, and bringing in different skills and different expertise, but I think that it probably goes more to conflict of interest and broad pluralistic membership rather than the issue of independence from Government. I understand that. Yes, are you content? Yes. I am looking at you, Roderick. Thank you, convener. Could I roll back to the question of unannounced visits? The Government, in their explanatory note to this order, state that the draft order provides that the expectation and monitoring of prisons is in pursuance of the objective of OpCat, which is the establishment of a system of regular visits undertaken by independent international and national bodies, etc. Mr Anderson, in your submission, you say that the purpose of OpCat is to establish a system of unannounced and unrestricted visits to all places where persons are deprived of their liberty by independent international and national monitoring bodies. How do you reconcile those comments? I reconcile it in the context of the statement that I was trying to make at the beginning in terms of the obligation that we have. The purpose of this is to have in place a system that meets the state's obligation, the positive duty to prevent torture in human integrating treatment and punishment. That's a multifaceted and complex process, and it's an obligation that existed far before OpCat was put in place. It comes from international customary law, and it's exemplified, particularly through the Convention Against Torture and the European Convention on Human Rights. Those obligations to prevent torture and that positive obligation to have in place structures is something that already exists. Because prisons are particularly vulnerable and we need systems in place to do that, what OpCat sought to do was to provide an additional dual layer of scrutiny through the subcommittee on the Prevention of Torture and through an obligation on national preventive mechanisms at state level. The minimum requirement under OpCat is that they can conduct their monitoring function on an unannounced basis. That was what we were adding through OpCat was ensuring that there was a national preventive mechanism that could do that unannounced. Having other types of monitoring and other types of inspection are all very useful, but the additional thing that we get from OpCat is a requirement for the state to provide powers to a national preventive mechanism and for the SPT to come unannounced. The order now provides for three types of inspection, one of which is unannounced. My point would be that that's the crux of OpCat, that's the OpCat thing that we're adding. Those other things are useful and our concern would only be that if resources were taken away from the unannounced visits to do the rota visits, the other types of visits, this would be a problem in terms of the adequacy of resources required under OpCat. We're certainly not saying that those other types of visits aren't useful, although we did raise concerns about the role of prison governors in determining the rota, but in terms of the OpCat requirement to have fully resourced unannounced visits, there would be a concern that if we're taking resource away from those unannounced visits to cater to the rota and the other types of visits, then there may be a risk of calling into question whether the process is fully resourced in terms of being OpCat compliant. The position at the present time under the existing prison rules is that at least two members of the visiting committee for a prison must visit a prison at least fortnightly. One member visits the prison weekly or two members visit the prison together in that fortnight. To that degree, regular visits are part of the system at the present time. What I'm trying to get at is the reality of the change. Does anybody else want to comment on that? My process started a couple of years ago. I carried out discussion groups inside four prisons with four groups in each prison. Nearly everybody that I dealt with, including staff, had never met the visiting committee in their prisons. I think that the idea of having some regular visits is a really good one, but having the capacity to deliver unannounced ones is an excellent one, too. The way in which people are going to manage their resources is still quite flexible as far as I understand it in terms of the planning for the new system that's coming up. I think that if extra unannounced visits are required, they will be supported. I don't think that there will be a shortage of capacity for that. My understanding also is that the way things are being set up just now accepts the fact that it's difficult to predict how things are going to be. Setting things down in the order isn't necessarily going to be the best way of doing it, because making changes to legislation is more difficult than making changes to guidance. That ties in, perhaps. Sorry. Do you want to come back in this way on that? Yes. Before I deal with the unannounced versus unannounced, I just wanted to respond to Pete White's point about his discussion groups. Those were discussion groups from which VC members were excluded. We asked to be observers in those groups and we weren't allowed to. In fact, we had quite a lot of difficulty in finding out even what the questions were that were asked. Having said that, there are 1,400 requests to visiting committee members a year. Clearly, a good proportion of prisoners do know about visiting committees. Where there's a lack of knowledge, that might not be unconnected with the fact that notices, forms and information about VC's routinely disappear off notice boards from halls. In relation to announced and unannounced visits, at the moment, all of the visits are unannounced. The way that it works is that the rota is set by the visiting committee and people are allocated either a week or a fortnight. They decide at what point in that time they go into the prison and they decide where they go in that prison. All of the visits are unannounced. The prison knows that the visiting committee is going to be in and out on a weekly or fortnightly basis, but they have no idea when. The proposal is to move to a kind of three-tier system of visits, not with increased frequency necessarily, but requiring that there are weekly visits that are on a rota. In addition, the monitor can do other visits that are not on the rota but which are agreed by the coordinator. In addition to that, it can do the unannounced visits that take place all the time at the moment. One of my issues with that is the practicality. There is a name, and it is certainly something that is laid down in OpCat, that the independent monitors should be representative of civil society. That is age, gender, ethnicity, all that sort of thing. At the moment, I have to say that the membership of visiting committees, the people who do independent monitoring at the moment, tend in the main to be retired people, because they are the only people who have the time to devote to the job. If there are going to be three layers of independent monitoring and there are going to be additional monitoring duties assisting with the SPS system, there is a new provision that nobody I have spoken to can tell me about, which is overseeing the monitoring or monitoring temporary release of prisoners. All those additional duties are to be added in. I do not see how a cross-section of society could possibly cope in practical terms with the workload that would be required. I am sorry that Joan Fields is not giving access to the discussion groups, but that was not my decision. However, we have independent observers outwith the civil service coming with us to make sure that we behave ourselves and that the process was held in a fair way. I am sorry that your point should be made elsewhere, Joan. We have had that little issue raised. Rodi, you have finished with your question. I have not lost who is in there. For Ms Fraser, on the specific issue of having a monitoring that was done by a representative group of society, in your most recent submission, you talked about the abolition of the statutory requirement and employment rights for monitors to be given time off by their employer. The situation will be compounded by that. Yes, I believe so. It does not seem sensible to me that people who are doing an important role like independent monitoring of prisons should not have the entitlement to time off work that is available to members of independent monitoring boards in the rest of the UK. If you were a member of the GTC or the Environment Protection Agency or a local authority, you would similarly be entitled to time off for employment from employment. What are the members of children's panels? I do not think that children's panels are on the list. They do not get time off either. There must be the same issues raised for them about having sufficient people coming forward to cross ethnicity and age and so on in children's panels. I would have thought that, yes. Yes, I am a member of the children's panel and have been for the last 11 years. This was a discussion that came up in the context of reform of the children's hearing system. There was a differing opinion between those who said that, as soon as you start to bring in some of the additional supports, people come in for the wrong motives. That is certainly not my view or the view of the commission, as we put in our submission. We think that it is an important safeguard to ensure that the rain, by providing at least the minimum supports in terms of loss of income. Just to make a very quick point, if I may convener, in terms of further supporting that, the OPCAP requires this regularity that we have talked about. It requires the expertise. I think that this is very important that we need to have expertise and recognise that expertise can be built up over time and experience and good training, as well as by professional expertise. However, we need to have the legal and medical expertise brought in as well. However, the requirement in terms of establishing the legislation and the policies supporting it is that we have a structure in place that supports the right people getting in and gives them the tools and resources to do these regular expert visits. I will take Christian first, then I will take Margaret Christian. Thank you very much, Governor. Good morning. Just a point about timing. We heard that the association of the committee is telling us about the consultation being a bit too short. I would like to hear from other members to know on members' panel what they think about the consultation being too short, or if you had enough time to make submissions. From my point of view, I understand that there is a pressure on time to get this process brought into action. Although the consultation period could have been longer, I think that there was sufficient notice given. I am satisfied that, given the importance of those people who were able to get on and make responses, I have no arguments with that. We also looked at it previously, the committee looked at it before we even got to this stage, and heard quite a bit of this evidence previously before changes were made following Professor Coyles. I certainly felt that it was quite tight. I found out last night that some schedules to the order had been changed on 19 November, which I was not aware of. I read them last night, so it seems to be a moveable feast. Absolutely, it is a minor technical matter, but some days they turn out to be biggies. I have not even had time to fully digest what those changes mean and what the practical implications are, but I know that now we have shifted two weeks into January, I think. However, as I say, that only came to my attention last night. Yes, Ms Fraser. As you will have seen from our submission, I thought that the consultation period was wholly unreasonable. The day after the referendum, the Government published over 100 pages of information, one document being its response to the previous consultation, which had been conducted some nine months previously, but they had not said for nine months what they thought of the comments they had received. At the same time, they published a revised draft order, which was significantly different from previous proposals, and allowed a three-week consultation, even though their own standards say that they would normally consult for 12 weeks, and only exceptionally would they shorten that, but I do not actually see any exceptional reasons except for the embarrassment that this has been dragging on for four years. I think that allowing a bit of time for people to—many of whom are people who are doing this in their own time—it is not part of their day job, they are not paid to do this—to allow people time to reflect on 100 pages of text and produce a response. I think that the fact that people were able to do it is really a tribute to them. Thank you. Mr Anderson. A general comment, I would say that it is a great credit to this Parliament that it puts participation of the people as one of its founding principles. I think that it is a continual challenge, the rate at which legislation and policy comes through this Parliament, and it is an issue that we have raised on a number of occasions in terms of taking a human rights-based approach to anything that one of the first principles is participation, and if you want to get the participation of the people affected by these decisions, it takes some time. I have another question in front of me, convener. What about inclusion in the order of the transition period of three months to allow the new system to bed in any comments? A sensible length of time was discussed prior to that time period being put in the order, and I do not see a difficulty with it. I am happy to agree with Joan. Oh, well, we will stop right there, I think. I shall leave it at that, to leave it at argument. Margaret. Just to ask a little bit more about the additional duties being added. It seemed to me—maybe I am wrong—that this provision was at the last minute particularly about the arrangement for the monitoring of temporary release prisoners. I think that there were two concerns here. One was that would be adding to the practical difficulties of carrying out the unannounced as one of the now three different types of visits that you would want prisoners to have and prisons to be subject to. The second was that this was rather an inspection function, as opposed to a monitoring function. Perhaps, if you could comment on that, on the detail that has been left to guidance and any solution that you could think of that might help to deal with those problems. Yes, if you wish, Ms Racer. On the first point in relation to temporary release, I have no idea why it is in there. Because we do not yet have the Government's response to the consultation process, we do not know whether there was something in that. I have looked at the consultation responses from the last consultation. I cannot see any reference to that. I have asked officials what the origin of it is and what I was told was that lawyers thought that this should be an inspection function and that therefore it should also be a monitoring function, which made me think that, well, if inspection and monitoring are supposed to be separate, why would you think that monitoring a particular area of the prison or a particular aspect of the prison system would be a natural counterpart of an inspection function? However, I have no idea what that would amount to, whether it is a review of the policies and procedures or whether it would be more appropriate for monitoring and oversight of the individual cases, how many there are a year, how that would be done, it is unknown. I am sorry, your second question. I have too much detail on your solution to these problems. The issue about so much of it being in guidance is that it can easily be changed. One aspect in general principle guidance is useful because you do not have to come back to Parliament every time you want to change a system, but when you are dealing with a matter that is as important as the human rights of prisoners, it seems to me to be very important that there should be a very stable and clear legal framework against which the system would operate. In terms of a solution, there is not a solution really in the terms of the existing order. I cannot see a way in which you would have to insert a provision, for example, to say that the guidance was statutory, which means that the guidance itself would have to come before Parliament, but that would require a change in the order, which, as I understand it, cannot be done under this procedure. The solution would be to put far more of the structure of the system and the requirements in legislation, as it is at the moment. Not withdrawn, could it be continued, perhaps, to reflect further on some of these last minute changes? My understanding is that the legislative process does not allow for the order to be amended at all, in which case it would have to be withdrawn or not approved by the Parliament, but I think that it would be sensible for there to be time, despite the fact that we have been looking at this for a very long time. I think that it would be worth spending a few extra weeks to have a system that, in Scotland, we could say that we are leading the field here. This is the gold standard to which the Government has said that it aspired. Mr White, are you about to agree with Ms Racer? I am going to divert slightly. I think that the reason for there being some responsibility or some opportunity for monitors to have dealings with the temporary release of prisoners is that, whilst they are temporarily released, they are still prisoners. At that point, I think that the access monitors might have to these people would be very helpful, and I think that it continues the regime. It may seem strange that somebody who is released from prison on a temporary order is still a prisoner, but I think that it is important that that continuity is there. Mr Adamson, the scope of op-kit covers all detention, and that includes restrictions that are outwith the prison environment. I would just refer very briefly to some core principles in relation to answering this question and that it is that the op-kit and the SBT guidelines that underpin op-kit set out very clearly the preference of constitutional or legislative text to frame as much as possible due to the nature of this process. Obviously, we are in a subordinate legislation process with reference to guidance. The further we get away from a constitutional or legislative protection, the less scrutiny that is available, the more concerning that becomes for ensuring the system is working effectively. A committee cannot ask to scrutinise guidance, even if it is not statutory guidance as such. A committee cannot take a view or even Parliament that it is quite substantial of what is in the guidance, and they may wish to deal with it. I absolutely take that point, convener. I know that your remit extends to all of those things within your scope and you could require it. I think that it would be useful to have a statutory requirement for that to come back, rather than to leave it to the best officers of yourselves. The other very quick point that I would like to make, if I may, is the link between having clear mandate in terms of what the responsibilities are and the necessary resources to support that. If additional functions are going to be added in, they need to be very clear at this level and resources need to attach to that. I understand that. I think that there is only one thing that we may not have asked. Do you want to ask it, Elaine? Briefly, the order does not specify a minimum number of IPMs. I just wondered whether you felt that it ought to do so or that there were disadvantages of specifying a number. I feel that you are such a weight of responsibility being first every time, so I will take Ms Mackenzie to that. We have consistently argued to try and put in. We accept that it may not be sensible to put in a number for every institution because, obviously, the harrow league aspiration is that our prison numbers will go down, but we did come up with a formula in the implementation group, which had a baseline of numbers for viability of a visiting committee. I am not sure why that has not gone into the order when we feel able to specify the number of prison monitoring co-ordinators. Obviously, it is good to see a reference to frequency in the order now and that was not there before. To some degree, it helps you to determine how many people might carry out those functions once you have defined the different types of visits, the meetings that they might have to do, the oversight of the temporary release, which is as yet unclear in terms of capacity. We would have liked to have seen, if not a number, a formula. As I said, a formula was bandied around our discussions in the implementation group, but there has been resistance to putting that into the order. The population of the prison attends to what you suggested. Whether young offenders and women might have an uplift in terms of numbers, because they are particularly vulnerable. When we last discussed it, we talked about a minimum of eight, but you would vary in terms of whether Barlinnie would have a larger number than, say, a low moss or one of the smaller prisons. I agree with Lisa about the process. I think that the one reason for the numbers being omitted from the order is based on the fact that prison estate is changing all the time. If we are going to have a minimum number, that might be seen as the threshold for acceptance. I think that there is far more to be gathered from experience as people find out what is required. The formula was a good idea, but I do not think that it can stick with the fact that the number of prisons is changing and the number of people inside is changing. The formulas that we looked at were flexible enough to allow for that. The system at the moment is very out of date and is based on historic local government boundaries, possibly two local government reorganisations ago, so it produces some very odd figures. At the moment, the legislation says that there should be six members of the visiting committee in Aberdeen, but 28 at Barlinnie, and that clearly does not make any sense, because there is a sort of irreducible minimum of things that monitors have to do. The formulas that we looked at and we looked at several were all based on prison population and having a minimum number of monitors per prison, and then adjusting that upwards in the light of changes in numbers or the particular needs of the prison population. You might argue that young offenders and female prisoners would require more intensive monitoring than other types of prisons, but in Barlinnie, there are so many people there with mental health problems that you might argue that they also needed more monitoring. I see no reason why there cannot be a formula that would offer some sort of guarantee. It is slightly worrying to me that there seems to be a feeling that we would keep the number of independent monitors as small as we could, but at the same time resourcing all the paid staff to quite an extraordinary bill at the end of the day, possibly 10 times what it costs at the moment. It is good that the Government is willing to spend money on a new system, but I am not sure that the priorities are quite right there. You do not need to say anything, Mr Anderson. I will only say at risk of incurring a wrath in terms of repetition that we need to have regular monitoring and it needs to be resourced, but the commission would take the view of the experts on the number of them. I am going to conclude the evidence session. Thank you very much for stepping in at short notice. Do you want to suspend for five minutes to change the witnesses? We are back in March and we have our second panel of witnesses in front of us. I know that you are listening in part to the evidence of the previous panel. I welcome Professor Andrew Cole, Professor Emeritus, Professor of Prison Studies at King's College London, Dr James McManus, member of the European Committee for Prevention of Torture, and David Strang, the Majesty's Chief Inspector of Prisons for Scotland. The Scottish Government has stated that it is committed to taking forward reform of the system for independent monitoring of prisons to meet the obligations under the optional protocol to the UN convention against torture. I think that for time we will call that opcat. I find a report full of acronyms, which is quite difficult to get your head round, convener, but however we will get there. However, there seems to be some concern about whether it is compliant with opcat. I would probably be late to hear the panel's views on whether we think that is a case or not. The light will come on when it is on. The United Kingdom's obligations under opcat are met through membership of its national preventive mechanism. The national preventive mechanism is made up of, I think, 20 bodies that are involved in monitoring places where people are deprived of their liberty. About five of those members are based in Scotland, including the Chief Inspector of Constabulary, the Chief Inspector of Prisons, the Human Rights Commission, the Mental Welfare Commission and the Care Commission. The current members of the visiting committees who monitor prisons in Scotland are not members of the national preventive mechanism. My understanding is that, under those proposals, and the Chief Inspector here will correct me if I have misunderstood that, under the new arrangement, independent prison monitors will not be members of the national preventive mechanism or at most they will be represented by the Chief Inspector. That is unlike the arrangements for England and Wales and Northern Ireland where independent monitoring boards are represented directly on the national preventive mechanisms. It is also, I should say, unlike the independent custody visitors to police cells who were set up in Scotland following the 2012 police act, they are members of the national preventive mechanism. To that extent, if I have understood it correctly, the new order will not change the arrangements. It will take us no further than we are at the moment in terms of the national preventive mechanism of OBCAT. Mr Strang. To answer Mr Pentland's question, my understanding is that it will mean that the monitoring of prisons in Scotland is OBCAT compliant. I know that the chair of the UK MPM has expressed a view that the new arrangements for independent prison monitors will be OBCAT compliant. I understand that part of the Government's reason for changing from visiting committees that were not OBCAT compliant because their funding came through the Scottish prison service that the body was monitoring. Part of the reason for introducing the new system of independent prison monitoring was to make sure that it did comply with OBCAT. In terms of Andrew Cole's comments about the national preventive mechanism, which he rightly says, I am one of the members, I represent Scotland on the steering group of the UK national preventive mechanism. At the moment, the visiting committees are not in any way represented. They are not members of the national preventive mechanism because they are not OBCAT compliant. The new arrangement, as you know, is to put responsibility for monitoring prisons, as well as inspecting prisons under my office. In a sense, they will have a voice now at the national preventive mechanism because, clearly, as the chief inspector of prisons for Scotland, I will have responsibility not just for inspecting prisons but also for ensuring the effective monitoring of prisons. As you said in your introduction, I am the UK representative on the Council of Europe, the Committee for Prevention of Torture. One of our tasks as we go around member states is to look at the preventive mechanism, the NPM, that is established under OBCAT. We have no formal role in monitoring them, but we have been asked by SPT to do that as we work within the 47 member states of Europe. Our experience, of course, is that they differ quite widely. Most of them are run by the Ombudsman's office in the relevant countries, but the structure of them is quite different from one country to the other. When I looked first at the Scottish mechanism, I could see strong possibility for the old style visiting committee becoming the NPM because it brought together the people who are doing the job, who are doing it on a day-to-day or week-to-week basis. That would have been the kind of model that would comply mostly with what is going on in other countries in Europe. When I first saw the structure proposed in the regulations that we are debating today, I thought that that did not do what I would want to have done. All that it did was take the financing away from the current arrangement. It was the national protective mechanism that you said it was not the NPM, not the NPM. We are so blurred with all this. It is the NPM. Are we all right now? The one hurdle that has been identified by the UK NPM is the financing of the current visiting committees. That left him non-compliant. The order proposes to change that, but in a way it structures it in a way that does not achieve the ultimate objective. That is to maximise the input of the NPM itself, because it is putting in the professional co-ordinators who will be the main mechanism through which the NPM performs its role. The people who are doing the work are further distanced from the NPM role by the creation of this new group of professionals, who will also be salaried by the Government, but not through SPS. It is a technical change that is in danger of further reducing the impact of the people who are doing the work of the NPM, rather than those who are defying the NPM. He believed in Dr McManus that that creates a conflict. If somebody has been paid to do something, there is a tendency that they may provide a report that suits their payment. We certainly have not seen that in the office of the chief inspector of prisons in Scotland, I have to say, over the years. No, I do not think that it is a fundamental compromise, but it does not look as good in terms of conspicuous independence, which I think is an essential element of an effective NPM. In my ignorance, how would you change that so that the independent prison monitors would be members of the national preventive mechanism? How would you physically change that in the legislation? You cannot. You simply specify in the legislation that the independent monitors are the members of the NPM. You put it in here, would you, during this draft affirmative instrument? Thank you. Thanks, John. Margaret, followed by Lane, John Finnie and Christian. Good morning, panel. You probably have heard if you were in the committee room when the previous panel were giving evidence of some concerns about independence. It seems to me that perhaps in seeking to make the monitoring system compliant with OCAT, there are some unintended consequences, particularly about independence. Could I ask you to look at it? I accept that some panel members have welcomed the frequency of visits, for example, being laid down, but now having three types of visits where previously anyone could go in unannounced, and also the capacity issue with the new duties and the blurring of inspection and monitoring. That is all right, so if you just take them a bit at a time. Shall I start? Just you go, Mr Strang. Thanks very much indeed. In terms of independence, that is clearly a really important issue. For me, the independence of the monitors rests on the independence of my office, if you like. As a Majesty's chief inspector of prisons for Scotland, I am independent of the Scottish prison service, and I am independent of the Scottish Government. In conducting my inspections and making reports, I will comment on what I find in terms of the treatment of prisoners and the conditions in prison, independently of those two bodies. If I have a criticism or praise for the Scottish prison service, I will make that in my reports. Similarly, if I comment on Scottish Government policy, I am not constrained from doing that. In terms of payment, part of the duty of a state that signs up to OPCAT and the national preventive mechanism is that they do have to fund independent monitoring and inspecting. We have an arrangement where scrutiny and oversight of prisons, whether inspecting or monitoring, is funded by the Government. I do not think that there is a conflict between the state providing funds to enable independent inspection and independent monitoring to take place. That is an important principle. I do not feel that my independence is compromised by the fact that I am not doing this voluntarily in my own time. The important figure is that prisons have to be monitored regularly. The order says every week that every prison has to be monitored. I do not think that there will be confusion in terms of three types of visits. I do not think that there are three types of visits. I think that there is a monitoring visit. That might be in response to the rotor that has been agreed, but it might be that they want to come back two days later to follow up something. It is just saying that you are not restrained only to come in accordance with the rotor. An independent prison monitor would be able to attend at other times than according to the rotor. I think that your third point about resourcing is a really important one. It is one that I should be taking up in my discussions with the Scottish Government if Parliament gives to be a new duty and a new scheme for independent prison monitors with co-ordinators. Clearly, that needs to be funded. It is the duties of the monitor that will lead us to the number that we need, given that there need to be a visit every week and the resourcing. The important point about the paid co-ordinators is that this is in response to the fact that at the moment visiting committees are very varied across the 15 prisons and young offenders institutions in Scotland. The purpose of introducing the co-ordination is to make sure that there is a good standard of consistent monitoring right across Scotland in every establishment. I wonder if I might answer Ms Mitchell's question by briefly stating how I come to be involved in this. In September 2012, the Government asked me, as you are well aware, to review whether its proposals in this respect were in conformity with the optional protocol and specifically its obligation to establish a system of regular visits undertaken by independent bodies. It was made clear to me from the outset that the Government's intention to abolish visiting committees in their present form was not negotiable, but it was agreed that I could interpret my terms of reference in a wide manner. I submitted my report in January 2013 and the Government published its response in April, indicating that it accepted 17 of my 21 recommendations and would further consider the remaining four. It further announced its intention to establish a new independent monitoring system consisting of four salaried prison monitors supported by an unspecified number of lay monitors to be overseen by HMI. That was not an arrangement that I had recommended. It seems to me that much of the remaining confusion that we have relates to both the appointment and the role of those prison monitoring monitors. The four salaried monitors have metamorfosed into the prison monitoring co-ordinators, but the order, as I read it, gives them more than a co-ordinating role. It also gives them the right to go into prisons to monitor. What I recommended was the public appointment of independent volunteer monitors for each prison in sufficient numbers to enable them to carry out their specified duties. I recognised that the monitors would need to have a supporting body, and I presented a number of options, one of which was the inspectorate of prisons. Over the last 20 months, the Government has, bit by bit, responded to the many concerns that have been raised, not least by yourselves, by giving us a dynamic series of amendments, which takes us a good way down the road, but still retains a complication that I suggested in my review was not necessary. Professor Coyle, the merging of the inspectorate and monitoring, although it was one of the options that was not your favourite option? I was at pains, Ms Mitchell, to make a distinction between inspection and monitoring, which I think is generally accepted. I recognised that one of the difficulties in the past was that there was no sponsoring or supporting group for the visiting committees. Indeed, that was provided insofar as it was at all by the prison service itself, the body that was being monitored. I gave a number of options, one was broadly parallel to that in England and Wales. There would be a small unit within the Scottish Government that could do that. That is the broad model in England and Wales. Another was that the Human Rights Commission could do it. Another one, which I did not push but would have been possible, would have been for the SPSO to do it. The fourth one was the chief inspector of prisons. I recognised that that would be a proper one, but I was at pains to point out that, in placing it there, which I did not oppose, in placing it there, there would need to be great care taken not to elide the distinction between inspection and monitoring. I have stated in my view about the monitoring coordinate. I agree entirely with Daniel Cole that the first order that you considered at this time last year needed amendment and clearly has been amended. The notion that there were prison monitors who would be the main monitors supported by lay monitors was very confusing. What has changed here is that the responsibility for monitoring clearly rests with the independent prison monitors, so that the volunteer members of society, the representatives of civil society who will be in prisons every week, the change of title to the prison monitoring co-ordinator, I think, does indicate what their role will be and will be about co-ordinating. Clearly, they do have a power to go into a prison. The issue about inspection and monitoring coming under the same organisation is that I know one that you commented on in your report. Earlier in the year, which was saying that there were real benefits. I think there are real benefits. I am very clear that they are separate functions. One is a professional inspection that is done infrequently and in great debt. Monitoring is a regular visiting and scrutiny and done by local people who are familiar with the prison. I think there are real benefits for having that co-ordinated so that the findings from monitors, for instance, can be fed into the inspection programme. I think that we will have a better sense of the monitoring and inspecting of prisons across Scotland as a result. Do you agree that, notwithstanding that there could be walls or Chinese walls between the inspectorate and monitoring, the perception will be that it is blurred to become one and the same whereas previously visiting committees were completely separate from the inspection and the inspectorate. However, now, because of the hierarchy that has been built, you can see for good reasons why it is to try to make uniformity and some kind of education and process for it and so on. Nevertheless, by establishing a hierarchy, it is seen as that the independent prison boards are just part of the inspectorate. I understand that, and many people have expressed that fear, and I do understand it. I think that part of the separation, as you described, of the visiting committee has led to isolation. I know that speaking to visiting committee members is a frustration that their voice was not heard. If they had concerns, they might take it to the governor and the governor might ignore it. I think that there were disadvantages to that isolation, whereas now there will be an avenue. So, if monitors are unhappy with the response they get from a prison, that can be escalated through the coordinator, it can come to me, and so I think there is an avenue for a greater voice. I think the reality within prisons is that prisoners will have confidence in the work of independent prison monitors by the way they conduct their business. If they are there regularly, they won't particularly see the link through to the chief inspector. You are technically right that, from a bureaucratic organisational sense, that is the way the governance is provided, but I think that in terms of the effective work of independent prison monitors, whether it is in S prison or in Greenock or in the new Grampian will be by the work that they are doing on the ground. I don't think that a prison will particularly make a link with, oh, this person is trained by someone who works for the chief inspector. It's called providing an alternative governance, which would have kept that separation as it were, a clarity of separation of the monitoring and inspection, and perhaps have made your position easier in some respects because in a way this could be seen to compromise you. Well, I don't think it compromises me in any way. I think my independence is still to it. I'm not saying it does. I'm not impugning you in any way. No, no, no. I didn't take it in a personal sense. I just meant that in terms of the functions that I do, I think it will enhance the oversight and scrutiny of our prisons because rather than these two functions being completely separate and not particularly talking to each other, that they will be coordinated. I had taken from your report that you had welcomed the fact that the two would be better coordinated and so I imagine that that's why the Government has continued to pursue this. I don't think either the inspection function will be compromised nor do I think that independent prison monitoring itself will be compromised. I think it's the detail that's been added later on and just looking further through the implications of the coordination even in the rotor having to be approved by the governor, the permission having to be sought by the coordinator and at the very bottom this unannounced visit, which is the norm just now that is causing quite a bit of concern. So, we'll move on. Gil Paterson, yes. Still unannounced visits. My experience tells me that institutions are better kept on the toes when inspections or visits are unannounced, wholly unannounced, but I wondered if the purpose of the three types of visits, would it be right in saying that an unannounced visit may cause some matters to be raised and so then the unannounced visit takes place to try and come to terms of what was found by the unannounced visit. Is that why it's three different types or can you explain what they are? I mean, in terms of visits by independent prison monitors, they are going to be in a prison every week. That's the requirement on them to visit every week. So, I mean, the reality is that a prison is not going to suddenly change how it does something because they know the monitors coming in on Wednesday afternoon. I mean, the regular monitoring of prisons by the independent prison monitors means that they'll be able to notice change over time. They will speak to prisoners, they can speak to staff, and if something's not right, a prisoner will soon tell them if they feel that they've been mistreated, if the food is poor. It's not that the monitor's objective is to come in and catch prison servers out red-handed doing something they shouldn't do. It's about regularly being aware of what is happening in the prison, what are the facilities like, how many prisoners are attending education, what is the provision of healthcare in the prison, what's the waiting time for the dentist, so it's more monitoring in that sense rather than expecting because you can't enter a prison completely unannounced because you have to be let in the front door. So, that sense of, as I say, catching people got a red-handed, that's what you have in mind, isn't part of what we would expect the monitors to be doing. All I did was have the security inspect. Well, I'd been told by Kilmarn at prison that I could come at any time and I did, which was rather interesting as it caused a bit of a stushy, generally, so it's sometimes useful and all I did was the security check. No, I'm sure you're right, but what I'm saying is that, if monitors only went once a year, then that might make a difference, but monitors are going every week. I'll take Dr McGannis then, Professor Coyle. Thank you, ma'am. I think that both kinds of visits are very, very important and certainly with CPT we do both kinds of visits and that's going to a country sometimes totally unannounced and going to a prison, which, as you'll understand, requires some negotiation to get into the prison to begin with, but it's also very important to do announced visits where you're asking for information in advance, which enables you more efficiently to monitor what's going on. It's more important to, in terms of finding out what's really happening in a prison to vary times and days of your visit rather than to have unannounced visits. So turning up on a Sunday, turning up on Christmas day, turning up on the days when the routine is quite different from usual and turning up at the time of the day, including, for example, during the evening or the night, and clearly that kind of visit has to be announced. There's no point in bringing the bell up our line at midnight and asking to come in. That would pose all sorts of difficulties for the place. So the thing is to get a balance of the visits and that's what visiting committees were beginning to do, I think. I did a research project on visiting committees away back in the 80s, which found tremendous variations in practice. It sounds very, very good committees, and some other committees. One particular committee, I remember, produced the same minute for their monthly meeting for five years. Visited all parts of the prison. Everything was in good order. Everything was perfect and signed off. For five years, that prison was in perfect condition. I wouldn't identify the prison, but it certainly, in my view, was not in perfect condition. So it's a matter of getting the variation right and getting the professionalism of the people built up, but professionalism based upon ordinary citizens, not professional monitors, but ordinary citizens who bring the outside perspective to the prison world. That was a big value of the visiting committee. Let's not use lose that under the proposed new arrangement. Just to expand on what Dr McManus has just said, convener, in answer to Mr Patterson's question, inspection is sometimes described as a snapshot in time, and that's not meant unkindly. The chief inspector, the inspectorate team, will go into prisons on a three or four-monthly rota and inspect it during that period, having looked at all the paperwork and reports and so on, but it's very much a snapshot in time, informed by previous inspections and other information. Monitoring is something that is done regularly and continuously. It's people who are in prison on a continuous basis seeing, smelling things, something's wrong today, something's different today. Because they know the prison or know the hall, they pick those issues up. Link to that, Dr McManus's point, that the strength of visiting committees in the past, in principle, but sadly not always in practice, in principle, is that they are representative of the local community. If the prison in Dumfries is taking prisoners from Dumfries, then the visiting committee should be people from that area who are going in regularly. Those are the distinctions between the two functions. They absolutely need to be complementary, but they need to remain distinct. Happy, thank you. Elaine, John Finnie, Christian. Previously, on the ability of the IPMs to hear and pursue complaints, the draft order seems to concentrate on the ability of the IPMs to assist prisoners to undertake the formal complaints process and less so on the ability to raise any issue with the governor or investigate any issue that a prisoner raises with them. I wonder if you could comment on whether there is an issue, whether there is a weakening of the current legislation in terms of raising complaints of prisoners. The issue was raised as a result of the first order, and people feeling that that had been removed, looking at the order 7D3, which is the duties of the independent prison monitor. It says that an independent prison monitor may investigate any matter referred to the independent prison monitor by a prisoner. A prisoner will say, I have something that I want to raise and the independent prison monitor can investigate that. I think that it is very clear that it allows and expects independent prison monitors to hear concerns from prisoners and to investigate and take whatever action is necessary. I think that the reason that the emphasis about supporting prisoners to make a complaint through the formal SPS complaint system is that what I do not think is helpful is to establish a parallel complaint system. I think that prisoners should be encouraged to use the Scottish Prison Service complaint system. The SPS needs to have a complaint system that is fit for purpose, and this might be something. If there were constant complaints that the SPS complaint system was not working, that might be something that the inspector might have a look at and we perhaps could do a thematic inspection on how well is the Prison Services complaint system working, how well is it trusted by prisoners and so on. I think that we are right to avoid setting up an alternative complaint system, but I think that it is very clear in the order and it will be in the guidance for monitors that they will be expected to hear concerns about prisoners to investigate them and to take whatever action they consider to be necessary. The description complaint is a very simple word for what can be quite a complex process. I think that it was Joan Fraser who mentioned that last year there had been something in the region of 1,400 complaints raised with visiting committees. The reality is that in terms of resolving issues, one of the main objects of the Prison Service and of monitors is to reduce issues that can give rise to complaints. A prisoner may come to raise an issue, because a prisoner raises an issue with an independent monitor. He or she may not define that as a complaint and, indeed, if it is properly dealt with, it will not become a complaint. It only becomes a complaint when it is not properly dealt with according to the prisoner's perception. As I understand it, the Prison Service's complaints system deals with complaints. Much of the work of the visiting committee at the moment in talking to prisoners and listening to prisoners is in eliminating or preventing complaints. I suspect that what is defined in the order as a complaint probably encapsulates that wider idea in addition to the specific issue of complaints. Does the order as it is now drafted concentrate to order that to give the appearance of wanting to escalate things into complaints rather than providing mediation? Is there a concern that tipping the balance towards complaining about the mediation? I am not sure that I have a strong view on that. Your next question might be, what is the alternative formulation? I am not sure what the alternative formulation might be. What is important is that the prisoner should retain the right to approach the independent prison monitor in a confidential manner without having to go through a third party. There should be an arrangement for doing that, as there is at the moment. Do you feel that in the legislation that is set before us? I suspect that the fact that we are talking about it means that we have questions, and if we have questions, you can be pretty sure that prisoners on the landings will have questions. That is the issue that has been raised with us, because prisoners may not have confidence. If they feel that they have to go through the formal complaints system and fear that there may be retribution for having done so, they may be less willing to come forward. The confidentiality is essential in this. I agree entirely. The system absolutely needs to have the confidence of those detained in prison, and therefore confidentiality is essential. That will be part of the system. Before independent prison monitoring starts, there will need to be guidance established. Part of that will be that there will be confidential referrals. The order says that prison monitors should be able to speak confidentially to prisoners, so the referral system needs to be confidential as well. In the draft in the regulation itself, the right to confidential investigation, should that not actually be on the regulation rather than just in guidance? That is a technical legal matter. There are lots of things that have been talked about as to whether they should or should not be on the face of the order. I suppose that my comment was saying that when we get to implementing this, we will absolutely make sure that the prisoners have confidence that their referrals are confidential. In the same way as they should be, when they want to refer to see a medical practitioner, if they want to refer to a nurse or a doctor, a prison officer should not know the reason why they want to go to the health centre. Sorry, Elaine. I was trying to call on the evidence from Ms Fraser that, in fact, what a prison visiting committee member could do just now is go with the complaint directly to the governor, but what seems to be the process now is that we would have to be done through the formal complaints procedure by the prisoner, assisted by the visiting committee member, and the response would be to them. I may have that wrong, but that was an impression that I got from the evidence that we got from Ms Fraser. That concerned her that, in certain circumstances, the prison visiting committee member could have raised it directly and then had a response back to them to convey to the prisoner, but that cannot be done that way now if it is a complaint rather than an investigation. Am I wrong? Yes, Professor Coyle. You put your finger on it, convener, that there is a danger that what this will do by default is immediately raise so many of those issues to the level of a complaint rather than preventing that happen in the first place. Yes, so it is what I thought now. That is fine. I like to not be paying attention. I simply wanted to repeat something that the David said earlier, that we have to be extremely careful not to subvert the SPS complaints procedure by allowing dual tracks. Jumping the queue, if you would like, by going through an IPM straight to the governor, would not be effective in improving the prison complaints process. We have to bolster the SPS process rather than subvert it. That is why I see the role, as has been explained, that the IPM has been to raise issues that prevent complaints from coming out rather than dealing with complaints. That does not cover the issue. Forgive me for being raised by Margaret Mitchell at confidentiality, which, if it is put through by the prisoner, I think that some of the evidence that we are hearing is that there might be repercussions for the prisoner. If it went through the system that way rather than through, I think that is the point that you are making, Margaret. There is a confidential process within SPS for raising matters directly with the governor. If it is a confidential matter, it can be raised directly with the governor, and only the governor would then know about it. The order provides that the monitors may investigate any matter, so it is not just confined to complaints. At 6B, the monitors may, without prior notice, speak in private with any prisoner who agrees to speak to an independent prison monitor. I think that confidentiality. The issue about reprisals is one that, as a member of the National Preventive Mechanism, that is one of its principles, is that a whistleblower or anyone who wants to make a complaint should not be subject to reprisals and further implications. The performance system was mentioned as something that more or less guaranteed anonymity was in the Nymphalock Act. Could you comment on that if you think that is something perhaps to be adopted in the order? I think that there needs to be a mechanism. I do not think that it should be in the order, because prisoners are very different in size. Vanessa is 140 people, Balini up to 1400, so it may be the actual mechanism. Some prisons have electronic kiosk that prisoners have access to, and it could be that on that they could send an email to an independent prison monitor. You could not demand that in the order because not all prisoners have access to being able to send an electronic message to a monitor, but there are two that I can think of where you could do that. I think that it is best left to the implementation rather than specifying it in the order. I think that that would be my view. No, I think that that makes sense. John Finnie-Christian, then Roderick, please. It is a question for Dr McManus. If I noted you correctly, Dr McManus, you talked about people doing the job a couple of times, and you used the term conspicuous independence. We also heard from the Scottish Human Rights Council about the privacy and privilege of forwarded prisoners. Now, in a submission that we have got from the Association of Visiting Committees, they say, and I quote here, at present, all PVC visits are unannounced, and this is more rigorous and consistent with OpCat. Again, if I noted human rights correctly, they suggested that the unannounced element was one of the separated OpCat from one of the other bits of legislation. Can you comment on that? That is the gold star, is it, unannounced visits? I think that we all agree that unannounced visits are very important, but not all visits need to be unannounced. I think that the two are there, and as long as there is a good balance, I do not see an issue. I ask about a further issue, as well, please, and that is, again, a concern raised by the visiting committees. It is about the abolition of employment rights legislation that would free up people to come, and the suggestion, which I personally agree with, that that will thereafter limit the type of person who may come forward. We want people to be representative. Do you have a view on that? It is absolutely clear that if we do not give people the right time of work, we will get people who are either self-employed and able to give up their own unpaid for time, or we will get retired people, and we will end up with a group of people who do not reflect the local community and who certainly would not reflect the age and class distribution of most prisoners. That is quite important. On a practical issue, Mr Strang, talking about visits, and you said that if something was uncovered, I would tend over it at other times other than the rota, you suggested that it would be possible to go out with the rota. What would the implications be for the rota of that? The order allows for visits out with the time, so that was all I was saying that by specifying that there has to be a rota so that every person is visited every week, that in itself is not constraining an independent prison monitor for going in at another time. The order allows other visits to be made unannounced, as we have heard, that are not in accordance with the rota, so that was the point I was making. Well, it depends who the rota is shared with, I suppose, as to whether it's unannounced. I mean, yes, you could have a rota, for instance, within the inspectorate we have penciled in when we will do an unannounced visit inspection, and we haven't said which establishment we're coming to, so that will be unannounced. A word that was used earlier about perception, I think that's terribly important, we've heard very genuine concerns from the visiting committees about how things could change and how perceptions thereafter could change. Well, I think the question of whether the new independent prison monitoring system is successful or not will be as a result of what they do and what changes follow. So, if monitoring is regular every week in a prison, which is what is required in the order, and monitors are seen to listen to concerns and report on what is going wrong and those things lead to improvements. So, for instance, if there are problems with healthcare, if there's problems with food and prisoners learn that by raising it with the monitors that then action follows, then I think there'll be real credibility and the issue about governance will become less relevant. Will you see a place for education promotion of this in the prison population? Because they're the customers, if you like, and it would be terribly important. Huge. I mean, I think at the end of this process, assuming that the independent prison monitors is implemented, then there will be a huge amount of work in terms of alerting prisoners to the new scheme, in terms of alerting prison staff to the new scheme. I think we've heard a couple of times already that not all prisoners are aware of visiting committee members. So, we would absolutely want to raise the profile of monitors, what their function is, and I would expect to see, as a result, an uptake in the request to speak to monitors. There seems to be a general feeling among people who've been involved in the visiting committee is that their work isn't valued as a result of the changes that are proposed. Is there anything you think that could be done to reassure people that the public service that has been given is appreciated? Yes, indeed. That view has been expressed to me. I can entirely understand if you have spent a lot of time working in a visiting committee, and then it's announced by the Government that visiting committees are to be abolished, you're not going to be feeling all my work is really valued. I can entirely understand that. I was in Inverness earlier this year, I spoke to someone who'd been on a visiting committee for 19 years, and that's not unique across Scotland. I also hear visiting committee members saying that they welcome the changes because they feel it's a bit ad hoc, they don't get the training, they're not supported, sometimes their voice is not heard. While I understand absolutely the submission from the Association of Visiting Committees, there are others who are keen to be new monitors, and I'm expecting and hoping that a number of people who are currently visiting committee members will want to apply to become independent prison monitors. In one way, you could see that the fact that the Government stated intention with the support of this committee that the notion about monitoring and visiting prisons is not being abolished and abandoned, but it's being enhanced. The reason for this is to improve how monitoring is done. In a roundabout way, I think that visiting committee members should realise that the work that they do is hugely important, being the eyes and ears of community in a prison and a closed establishment. We know that internationally it's recognised that people detained by the state are vulnerable to mistreatment, so I think that that role of regular monitoring is hugely important. I would hope that before visiting committees end their responsibilities that there will be real acknowledgement for the invaluable work that they've done over the years. Given the response that we have heard and you've heard some of the events today, you would acknowledge there's perhaps a way to go with that particular aspect. There's a lot of uncertainty at the moment. I think somebody mentioned four years. I've been in office for 18 months and I knew when I took up this job that there would be independent prison monitoring coming that would be my responsibility because that Government announcement had been made and here we are 18 months on. I think the uncertainty has been unhelpful. I was speaking at the event last week and saying that, a year from now, if all this goes through, we'll have it all up and running and it will be successful and improve monitoring. You said about informing and letting prisoners know about the independent prison monitors, but the mysteries have said that information about prison visiting committees was regularly removed from boards so that prisoners didn't know. I don't know whether you want to comment that. Did that happen? Has it happened so that prisoners didn't know? If you do know, who took them down? Who took down the notices? Who let the dogs out? I mean, how did it happen? Yes, it does. Interestingly, and this is perhaps where you could see the complementarity. When we inspect, we will make sure that there are notices about how to make a formal complaint, how to complain about the health service, the information about the visiting committee number for Samaritans and so on. We make sure that our notice boards and that information is up and John Frey is absolutely right that we will sometimes go into a place and find that the information is not there. Now, in terms of the new world— She says it's been taken down. No, it's just not there. Somebody's taken it down. It's a bit different from just not being there. Well, I suppose I was objectively stating that it is no longer there. You could infer that it has been taken down rather than it fell down itself. I agree with you. One of the things that we would absolutely make sure is that information about the new independent prison monitoring is available. It's given to prisoners on admission and through the induction process. We would make sure that there was regular notice. That will be a regular check. I suppose that that will be, for instance, a co-ordinator's job is to make sure, and if it's not, it's regularly taken down and am use suggesting malice on the part of prison officers. If that is happening— I just said it. I just wanted to know if it's taken down and if so, to know who's taking it down. If that were regularly happening, that would be the sort of thing that the co-ordinator would raise with the prison governor who now has a duty to cooperate with the inspection and the monitoring process. Professor Coyne. Professor Coyne, on a brief word about Mr Finnie's two earlier points, unannounced visits and the profile of independent prison monitors, you asked about unannounced rotas. That, in effect, is what exists at the moment. Visiting committee members statutorily are advised to go in, if my memory serves me, twice a month, so it's for them to decide when, within the month, they should carry out. They will identify which of their members are to go in in November and December, but then they will decide which days they go in, so that, in effect, is an unannounced rota. Just as an aside on that, my understanding is that the chief inspector of prisons for England and Wales now carries out all his inspections on an unannounced basis. He's decided to go down that road, and that's a decision that he's made. In terms of equality, we are having been through all the pain that we've been through in the last few years. We obviously all hope that we come out better for the experience. One of the things that there is agreement that we need to find is a much more diverse membership of independent prison monitors. The reality, as I think the AVC said earlier, is that many of the current visiting committee members are retired people or people who have time, quite frankly, because that's the nature of what's expected of them. If we're serious that we want a diverse profile in terms of all the issues that we're aware of for independent prison monitors and also that might perhaps reflect the clientele that they're monitoring in prison, then we need to take on board the issues about the implications. I, in my review, did not resist the temptation to specify a number for each prison. What I did was provide a calculation to say that it would be reasonable to expect an independent prison monitor to go in, let us say, once a fortnight. You would need a consistency like that so that the individual would get the feel for his or her prison. Once a fortnight is 26 days a year, if we're asking someone voluntarily to give 26 days a year, then we need to make provision for all the consequences of that public service that we're asking of them. Thank you. It's very helpful. Christian, followed by Roderick. Good morning. Just a quick question regarding the comments from the Association of Visiting Committee on the timescale of the consultation of the revised order. Have you got any comments to make? If I may speak briefly, one of the things that I have found confusing over the past three years is, how does one explain this politely, the dynamics of the Government's position? I put in my evidence to you on the due date, which was the 7th of November. I think that my memory serves me right. On that 7th of November, after I put my evidence in, the order was laid and the order was laid was different from the draft that had been circulated. I learned this morning that an amendment—and it may be technical, you're correct convener—has since been laid. There is a sense of drift, I have to say. We've gone from a position in November 2011 when all prison monitoring was going to be abolished to a position where we were going to have three paid monitors and that was it. There is a degree of drift, which is reactive rather than proactive. That doesn't really bode well for the future. It was tight, but we waited a long time for it to come. I said in response to Mr Finnie that the period of uncertainty is unhelpful. I'm looking forward to the process being concluded and then getting on with implementing whatever follows. Talking about period of uncertainty, you've seen that in the revised order, we now have a transitional period of three months. Is that period long enough? Do you think that guidance—some of the previous panel said that some of the guidance should be a statutory level? Or do you think that a three-month period to embed everything with the guidance is where we are laid in the order? Is it strong enough? I think that the transition period is to do with after the monitoring comes in and the responsibilities of visiting committees continue. The start date that is proposed here is the end of August, which gives an eight-month period in terms of guidance, recruitment, training and so on. I think that that is an adequate time. I find myself today, convener, in a bit of a dilemma. On the one hand, we have been running through the term painful process for at least four years and arguably longer. I don't think that that serves independent prison monitoring any good. I don't think that it serves prisoners any good and I don't think that it serves any good for visiting committee members. There is part of me that says, let's get this signed off and get on with it and hold the chief inspector's fingers to the fire and make sure that we get everything properly delivered. On the other hand, I am conscious that once the order is signed off, that is going to be it, as the man said, for a generation or for longer. Therefore, there is an argument for trying to get it as good as we can at the moment. There are certainly weaknesses in it, as it stands, and I suppose that it is for you as a committee to square that circle. It cannot be amended, of course, as we know. If there were changes to be made, it would have to be a fresh order, as I understand it. If I pinned you down, as it was, Professor Coyle, metaphorically speaking, and said to you, should this be passed or not passed, giving another order to be brought forward with more consultation, what would you say? I was afraid that you were going to ask me that question, convener. Had you asked me it, I think, a week ago, I had come to the conclusion, let's get this thing over and let's make it as good as we can and, therefore, let the order go through. I did something very unusual for me and sat up really quite late last night, reading all the submissions and going through the official position, the various submissions that have been put in. Issues, for example, like getting the governor's approval for rotas and a variety of other issues that have been mentioned today. I have to say that, with considerable regret, it seems to me that the order needs further amendment. I say that with great reluctance and, unfortunately, I do not have to make that decision, but we either sign off something that we hope will work with its feelings or we extend the if it's signed off now, my understanding is that it will be well into 2015 before changes happen. So we're consigning it to even further in the future, but I just have this fear that we're signing off something which we will say, well, we missed an opportunity there. I think that it's in a fit state and, if that were introduced, it would be a robust system for independent prison monitoring and would fulfil the purposes that are stated in the order. Dr McManus, do you want to—oh! You see you're wondering if you're going to get away with just sitting there. Are you going to try that, Barnum? To be honest, I don't know. I'm aware that this has been a long and painful process. I'm tempted towards the chief inspector's position of, let's get this going, and then perhaps we do have to come back in a couple of years' time and say, right, there are fundamental problems which require a new order, but at least we've got something working in the meantime. But I can also see Professor Coyle's approach of, let's get it right first. Just in no more, I'm in the chief inspector's position. Slightly—right, thank you. That was helpful, yes. Just to put it in my conversation, what do you think the role of the Justice Committee should be in the years to come on that particular order? Monitor the monitors. Don't ask witnesses what our role is. Yes, you did give some reassurance to the first panel. I hear what you have to say. It was very invaluable. You said, Roderick. By bringing back to the question of independence and monitoring being complementary but distinct, yet obviously in the order, you're at the apex of some of this, Mr Strang, and indeed the Government thinks you're best placed to really integrate scrutiny and monitoring effectively. Can you provide some kind of reassurance as to how you're going to approach keeping those two things distinct but bringing them together, as it were, if that's not contradictory? I think part of the distinction is that their function is different. The inspecting side of the inspectorate is, as has been said already, a snapshot in time. A very detailed, in-depth scrutiny. In fact, I started an inspection of Perth Prison yesterday, so I've got a team of 11 people in Perth for the next fortnight, and they're looking at every aspect of prison life. We have a set of standards and indicators that we measure against each. We produce a report, which normally follows two or three months after the inspection, and it'll include recommendations, and there is a good practice, and then that gets reported publicly, and then we follow up inspections and processes to hold the prison to account for that. That's the inspection process, and as well as the prison's inspectorate, I'm joined by inspectors from Healthcare Improvement Scotland who look at the Healthcare Education Scotland inspectors. Join us, and we have someone from the Care Inspectorate looking at the social work aspect of life in prison, so it's a professional deep inspection. Monitoring, on the other hand, as we've heard, is regular, continuous monitoring, and I think what monitors we'll see is, as Andrew Cole said, change over time, so they will get to know the prison, the environment, the staff, some of the prisoners who are there for a long time or go in and out sadly, and they will get a sense of how things change, but only in that one establishment, whereas what the inspectorate does is it's good at comparing against other establishments, which isn't a thing that monitors can't do unless they happen to have been a monitor in another prison. Those functions are different, but where it becomes complementary, I think, is that there might be issues that are raised of public concern or that have been issues raised in inspections that I might ask the monitors to look at, so whether to do with healthcare or quality of food or some particular aspect of education or exercise or recreation or so on, and so it could be that I would invite the monitors to say, well, would you like to monitor over the next three months this aspect of prisons, and then we would get a picture across Scotland of that one aspect, so if you like it, it's kind of invited monitoring, and I think that's where the co-ordination comes in, or it could be that we get reports from monitors that say we're concerned about this in Glynocl, we're concerned about this in Grampian, we're concerned about this in Lomos, and that might feed into the inspectorates inspection programme and say, well, maybe we should do a thematic inspection, and next year in the spring I'm doing a thematic inspection on the use of segregation and isolation in prisons, because that's an area of potential concern, so we're, as an inspectorate, because I haven't got responsibility for monitoring, we are doing a thematic inspection on that, so I can see that's where the benefit of this complementary and co-ordination would come, that there can be information from monitors that would feed the inspection process and vice versa as well, and then of course I'm required in this order to put a report annually on the condition and treatment of prisons and on the effect of monitoring, and so that, in a way, is a new voice for monitors that the visiting committee don't know, but they have to produce a report, but not much happens with it, whereas I think the laying of the annual report before Parliament will give public view to the state of our prisons and how prisoners are being treated in a much more visible way. Well, that concludes this evidence session. I thank you very much for your evidence. Can I say to the committee on the 16 December we'll take evidence from the Scottish Government on the order before deciding whether or not to approve it? Thank you indeed. I suspend for two minutes to allow the changeover. We move back to item 3 on the agenda. Thank you very much. We're back to the agenda. Item 3, final evidence session on the LCM on the Serious Crime Bill. I welcome to the media. I was going to say the late Paul Wheelhouse, but not your fault, Minister, for community safety and legal affairs and Scottish Government officials. I congratulate you on your appointment, having insulted you first. I then have Dr Lucy Smith, head of organised crime strategy, and Lesley. Is it Moussa? Moussa. Human rights and third sector division. I believe that you're going to make a pre-opening statement, Minister. I thank the committee for giving me the opportunity to discuss the provisions of the Serious Crime Bill for which we're seeking consent. As you'll be aware, the Serious Crime Bill was introduced to the House of Lords the day after the Queen's speech in early June. It has now progressed through the House of Lords, the House of Commons, with its first reading in that House on 6 November. A number of provisions within the bill are reserved to the UK Parliament, and today I want to discuss the provisions that fall within the devolved competence of this Parliament, and particularly the legislative consent motion that is required to allow the UK Parliament to legislate for those matters. The principal objective of the bill as a whole is to ensure that law enforcement agencies have effective legal powers to deal with the threat from serious organised crime. Much of that is achieved by updating existing legislation. The motion seeks approval for the UK Parliament to apply provisions in four main areas of the Serious Crime Bill to Scotland. Those are amendments to the Proceeds of Crime Act 2002, amendments to the Computer Misuse Act 1990, amendments to the Serious Crime Act 2007 and an amendment to the Female Genital Mutilation Act 2005, and I'll briefly outline each of those areas. The Scottish Government has undertaken to strengthen proceeds of crime legislation, also referred to as POCA, in this Parliament. Committee members will be aware that although the criminal and civil law are generally devolved, POCA provides for the confiscation and civil recovery of the proceeds of reserve crime, for example drug trafficking and money laundering the proceeds of drug trafficking, as well as devolved crime. Because the majority of cases that come to court are for drugs-related offences, the legislation is reserved. Two of the clauses in the bill, 19 and 23, are measures relating to Scotland that close the gap with the rest of the UK for default sentences and the civil recovery of assets. The bill includes provisions proposed by the UK Government and which the Scottish Government agrees to strengthen the operation of the asset recovery process. The relevant provisions are contained in clauses 15, 16, 17, 18, 20, 21, 22, 37 and 38. The practical impact of amendments within the bill is that the powers available to both prosecutors and the civil recovery unit at the Crown Office are reinforced through the strengthening of the legislation. Criminal law relating to computer crime found within the Computer Misuse Act 1990 is generally a devolved matter. However, clause 40 introduces a new offence concerning unauthorised acts, causing or creating risk of serious damage, which relates to both reserved, for example, national security and devolved matters. Provision within the bill also implements the directive on attacks against information systems and reduces the threat and impact of cybercrime by ensuring that legislation is robust and consistent with other parts of the UK. Back in 2006, the Parliament agreed a legislative consent motion in relation to changes to the Computer Misuse Act 1990 for the reasons given above. We consider that it is again appropriate for certain changes to be made in this way and that the Serious Crime Bill presents the most efficient and effective way of transposing the EU directive's requirements in or as regards Scotland. The Bill amends part 1 of the Serious Crime Act 2007 to extend Serious Crime Prevention Orders, or SCPOs, to Scotland. Those are civil orders that will be used to protect the public by preventing, restricting or disrupting involvement in organised crime in Scotland. The practical impact of SCPOs is that law enforcement agencies will have an additional tool for tackling serious organised crime in Scotland. Amending the Serious Crime Act 2007 to extend SCPOs to Scotland will ensure that the civil orders will be able to cover areas where the Scottish Parliament does not currently have the appropriate legislative competence, areas such as drug trafficking, money laundering, the proceeds of drug trafficking, counterfeiting and arms trafficking. Since there are significant overlaps between SCPOs and financial reporting orders, or FROs, which were introduced by way of the Serious Organised Crime and Police Act 2005, the Bill seeks to repeal provisions in that act for FROs and for financial reporting orders to be imposed through Serious Crime Prevention Orders. The Bill seeks to extend the extra-territorial reach of offences in the 2005 act so that they apply to habitual as well as permanent UK residents. The practical impact of this amendment is the closure of an existing legal loophole. This particular provision is included within the Bill for purposes of speed only and we wish for the identified loophole to be closed as quickly as possible rather than waiting to make the amendment via a specific piece of Scottish primary legislation, which I hope the committee would agree with. While the Scottish Parliament is able to legislate for devolved matters, the legislation being amended by the Serious Crime Bill covers a mixture of reserved and devolved issues. I believe that it is sensible for the provisions in the Serious Crime Bill relating to amending POCA, amending the Computer Misuse Act, amending the Serious Crime Act and amending Scottish legislation with respect to closing a loophole relating to female genital mutilation should be dealt with by the UK Parliament on this occasion. I therefore ask the committee to support the draft legislative consent motion laid before you and would happily answer any questions. Margaret Mitchell, John Finnie. Good afternoon. Congratulations on your appointment. Can I ask about the Proceeds of Crime Act? I note that the practical effect of the Bill and the proposed amendments would be to make powers available to prosecutors, to reinforce those powers, the recovery unit, the slippery recovery unit and other law enforcement agencies. Can the minister tell me if that is likely to increase the workload of the Crown and Procurator fiscal service? At this stage, we will happily come back in writing to the committee about the issue, about the workload and in respect of—we do not have any evidence to date—at least to suggest that there would be an increase in the number of restraint orders or moves here. We are not aware of any particular issues that might cause me in the future, but we will check with the Crown Office's Procurator fiscal service if there is any reason to believe that there would be an increased workload on the justice authorities in relation to the measure. I assure the committee that at the moment we do not have any evidence to that effect, so I hope that that is of summary assurance, but we will write back with a more definitive answer on that point. Just on the issue of empirical evidence, is there any for lowering the test for the granting of the restraint order at the pre-arrest stage? I am not aware of any evidence. If I may convene with your permission, I will ask Lucy Smith. Thank you. Dr Smith might be able to address that point more specifically to the member. Thank you. Is that about the restraint orders more specifically? To suspect and at the pre-arrest stage? That is correct, yes. My understanding is that this is not going to have a significant difference on what restraints may be made. However, as Mr Wheelhouse has already alluded to, it would be helpful for me to be able to check with my colleagues in the Crown Office to send that back as we have written response to the committee. Are the Crown Office supportive of those moves under Bocca? So they are themselves? I believe so, convener. Certainly, there has been a desire since 2010, I believe, to try and find alleges of a vehicle to bring in those measures. It was not possible, unfortunately, in the Crime and Courts 2013 act to do so when this was raised with authorities. Down south, it was not felt to be appropriate, but, clearly, we have taken the first legislative vehicle that was deemed appropriate to do so. If I speak for Dr Smith in this relation, I know that Dr Smith and colleagues in the Crown Office Procurator Fiscal Service are keen to have those powers to be able to take them forward. As I said, it was R, the Crown Office. It is the Crown Office, and it has been picky about grammar. I better correct that on the record. John Finnie, please. Minister, on the question of serious crime prevention orders, has the effectiveness elsewhere in the UK been measured by the Scottish Government at all, please? If I may, can you answer that point? I think that it would be useful to cite the evidence of Keith Bristol, who is the DG of the national crime agency, when he said that they have made very effective use of prevention orders and they will be increasingly important to the way in which we, i.e. the national crime agency, in this case, tackle organised criminals. It is certainly something that we have benefited from in England and Wales. It has seen real benefits for us and enhanced our ability to disrupt criminals. I am aware that the rest of the UK level in the last eight years has been 330 cases where they have been used and many have been used for up to five years. Anecdotal evidence is such that, if they are used and the individuals concerned are forced to stay above the radar to some extent, that means that they become perhaps less attractive to others in the criminal fraternity to work with, if we can put it politely, and they are often shunned by those in the criminal fraternity, because they realise that it is potentially an avenue by which they could be caught themselves by being associated with individuals who are being kept under close supervision. There have been a number of appeals, most of which have been successfully taken forward by the authorities, but some have gone the other direction. Even when an appeal has been lost, that has helped in tightening up the language of the SCPOs to ensure that the wording is tighter and that they are more defensible in the future. We do not have any concerns along the lines that the SCPOs will be in any way shape or form damaging to the interests of pursuing serious crime. In fact, the reverse, we believe that these are an important measure that would help the justice authorities in Scotland to have an additional new tool that would allow them to tackle serious organised crime in Scotland. It is worth stating that, from the safeguards point of view, that only the Lord Advocate can apply for an SCPO and the court must be convinced of the case for using an SCPO, so there are safeguards there as well to ensure that it is only applied in appropriate circumstances and ensure that it is not used in a frivolous way, but where those are being used in England, we have at least anecdotal evidence so far that they are deterring individuals from being involved in crime by the fact that they are effectively being shunned by others in the criminal fraternity. I appreciate the significance that has been afforded, the implications of the orders by the fact that it is only the Lord Advocate that can apply. I note that application can be made to vary some of the terms of them. What assurance can you give, Minister, given that a lot of respondents quite understand the blade to the consultation, we are concerned about any impact on third parties? Because these are very draconian measures, everyone would want to take the strongest action against organised crime, but some of those measures could directly or indirectly impact on third parties. What assurance could you give us that that would be monitored? I think that it is important to monitor the impact to the measure. As we have uncovered from the comments on Keith Bristol, it has taken a view us to the effect of some measures in England, so it would be beholden on Government and Crown Office Procurator Fiscal Service to monitor the impact of those measures and to note if there are any impacts on unintended consequences on third parties. I will happily come back to the committee on how we would take that forward. The principle is that we have a measure that can be used to hopefully act as a deterrent to people getting involved in serious crime in the first place, but if they are involved and they are successfully prosecuted, we have a means by which we can make it more difficult for them to commit similar offences in the future. I think that that is an important measure, but I take the point from the member that we need to be mindful of the impact, perhaps unintended on third parties who have no criminal activity or criminal intent at all. That is something that we can take forward. I do not know whether, in terms of deliberations on the measure, Dr Smith may be able to add anything as to what the Crown Office proposes to do in terms of monitoring the impact in due course. Thank you. I think that, as the Minister says, it is something that we would need to keep an eye on in any case. Certainly, information that we have had from south of the border when SCPs have been imposed, when they come to appeal, if there has been any implication on third parties, we have taken a close note on what those impacts may have been. One of the things for serious crime prevention orders that I think we have learned from what has been going on south is that they need to be very specific about the restrictions. They must be very specific. They must not be disproportionate at the intent. This intend to be a civil order. It is not a punitive measure. It is preventative. It is to prevent someone from being involved in crime or criminality or to disrupt any impact that they would have. The court must consider whether or not the risk of harm is, and that would be the overriding principle on whether a court would agree or not to impose an SCPO. I think that what you raised about third parties is a key part of that. The mechanics of that, if I may, is that something that the individual who is going to be the subject of this would be aware of in advance and have the opportunity to make representations? I can see that that could be a double-edged sword as well if you are trying to disrupt criminal behaviour or perceived criminal behaviour. You would be aware of in advance. Sorry, if I may. The majority of SCPO's would be imposed post-conviction, so a case will be going through the court, and as part of that the prosecutor will make application for serious crime prevention order for the court's consideration. That information will clearly be shared with the defence. It would be aware of what is being requested and what the restrictions would be. It would be for the court to decide whether or not to impose one. If I may just add that the point that was being made by Dr Smith in relation to and a point alluded to earlier on about refining the wording, hopefully over time, Crown Office and others will be able to refine the wording such that they are quite specific, as Dr Smith has said, and therefore minimise the potential impact on third parties, and also minimise the potential success of an appeal as well, being quite specific, and being able to clearly link the SCPO to the criminality that was being undertaken before. Good morning. It's afternoon now. It would have been morning, but thank you, convener. I'm going to move on to prohibition of female genital mutilation and the change in the test to apply to individuals who are habitually resident as well as to individuals who are ordinarily resident. Is this a kind of belt and braces exercise, or is this a response to evidence that this is actually a problem at the present time? I think that, in truth, Mr Campbell has a point here. We do have, at the moment, a weakness in terms of lack of robust evidence of the prevalence or likelihood of female genital mutilation in Scotland. Indeed, that's an issue that's probably UK-wide. There have been relatively few cases taken forward, so this is about trying to minimise the risk that such activities could be undertaken. Certainly, the perception that there has been justifiably or unjustifiably in the past that, perhaps, Scotland might be seen as a soft touch if we didn't move to standardise, in some respects, the approach that we take in Scotland versus that across the UK. There are two aspects of it. One is to avoid any perception that Scotland is any way a soft touch on female genital mutilation. I think that this measure addresses that specifically. The second issue is to then make sure that we improve the data quality. I am aware that the Scottish Refugee Council is due to report. I believe that, on 17 December, a draft report is just being prepared on a report tackling female genital mutilation in Scotland, a Scottish model of intervention. That report will hopefully set out how we can go about improving the data provision on the prevalence of female genital mutilation in Scotland. That will be an important part of the process. We have better data in the future and are able to monitor what is actually happening, but there is not an enormous amount of evidence at this stage of it occurring in Scotland, which is reassuring, but we have to be absolutely mindful of the fact that there may be hidden from view. Therefore, improving the data will be an extremely important step to take. I never thought that I would be asking Paul Heallow's Minister about computing, because I know as much about that as I know about under the bonnet of my car, but it is very interesting the extension of the law in this area where so much crime and problems are committed. I notice that I will not go through and rehearse the way that the bill amends the CMA. One of the interesting things is the extra-territorial jurisdiction of offences, where offences are obviously committed way beyond the UK or even indeed Scotland, but it can be prosecuted here. It seems to me that that is a very resource-intensive issue for policing, for detection, for enforcement. What resources will be required for that and how will these be shared across the rest of the UK and Scotland when it is inter-durisdictional is really what I am getting at? If that is to be worth more than the paper that it is written on or the computer it is typed on or whatever, how will that be done? There is an important measure in its own right, but it should be seen in the wider context of the cyber strategy for Scotland, which Mr Swinney, in his role as Deputy First Minister and Finance Secretary, will be taking forward on behalf of the Scottish Government. I can assure the committee that Mr Swinney will be looking very tightly at any resource implications for Scotland. We can come back to the committee in due course, convener, with any assessment of the financial resource impacts of policing these issues beyond our borders and how we will work in practical terms with colleagues not only in the UK but across Europe in tackling this. Clearly, there is established international infrastructure there in tackling international crime. We can come back to the committee with how that particularly works in a Scottish context. The police and law enforcement agencies across Scotland collaborate on a number of cross-border issues, especially where this is a reserved matter, but where there is a clear joining of our synergy, if you like, in working together to try and address challenges that not only face Scottish companies but companies that operate across Scotland, England, Wales, Northern Ireland and, indeed, Europe and the world, from the threats of cybercrime. The important measures that are being brought in through the LCM will enable us to tackle those that perhaps are intending to commit such a crime or beyond our current reach. That does more than aligning the Scottish crimes and protection orders in Scotland with what there is in the rest of the UK. That is a fairly robust amendment to the computer misuse act 1990. It does not just make the same thing. There is a bit in it here that says that, by creating a new, indictable offence of committing an unauthorised act in relation to the computer, that results either directly or indirectly in serious damage to the computer. That is quite a difficult test. What would the defence be? Somebody might be completely unaware that they have put something in that is a significant risk. For example, let us say to human welfare or whatever, will that be on reasonable doubt tests and criminal law? I am taking it, is it? The rest are easy directly, but indirectly you might be doing something and not know what you have done has had this impact, the law of unintended consequences. I am not thinking about something that I might do by the way, I am not looking for a defence, but just how that would work. No, I understand the concern and need to be clear about what can happen. I suppose that if you had someone deliberately created a computer virus but not with the intent of taking down the air traffic control system but it took down the air traffic control system and caused either fatalities or massive economic damage, that would be something that you would take very seriously. I might ask Dr Smith if he is aware of any specific examples that were being thought about when framing the legislation. I do not know if there are any that have been considered, but certainly in this provision we would allow us to tackle those activities that are designed to damage IT systems but not specifically to damage a particular economic interest or a particular sector or a particular user of technology, but it had that impact on serious damage that resulted from it. I invite Dr Smith to see if there are any specific examples that we have thought about in this context. Unfortunately, I am unaware of any specific examples. I think that, as Mr Wheelhouse has set out, I can certainly go back and come forward with specific examples if that would be helpful to the committee. I must be thinking about why that is there and what is a child for instance, a 10-year-old, who manages to bring down air traffic control to take your example, but there would be a difference there, but there will be a great area at which somebody quite innocent finds themselves falling foul. I do not want to defend people who are up to mischief. Do you want it to go into that? Elaine knows more about computing than I do. Thank you, convener. I picked this bit up as well about obtaining a tool for use in committing a CMA offence, regardless of an intention to supply that tool. I know that that is actually a requirement of the EU directive anyway, but somebody could, for example, write a piece of software that is benign in its initial use but, thereafter, is used by somebody else in a way that is more malign. I am just wondering what sort of protection would be there for the person who possibly wrote a piece of software without any ill intention whatsoever? It is just badly designed software. It is incorporated into something else that is maligning its purpose. I take the point. It is something that, clearly, we can take from the number of comments that has been made that the committee would welcome some clarification on. We will try and seek some clarification from the UK ministers and, indeed, the Crown Office Procurate Fiscal Service. If there are any cases that they are aware of that might have applied, or which maybe have not been able to prosecute in the past but perhaps could do with the provision of this amendment, I suppose that much of the provision deals with those who are illegally accessing or interfering with the computer system and, therefore, hacking in or doing something of that nature rather than doing something that is completely accidental and perhaps designing something on their home computer, which somehow or other escapes their home computer and ends up in the wider system. I take the extreme end of the spectrum that potentially is someone who legitimately accidentally does something, but I think that those measures are designed to deal with situations where there is at least some intent to cause harm and it just happens to be perhaps unintended victims that fall victim to that harm. I think that I am looking for a defence now. I have decided just in case, but it would be very useful, seriously, to have the thinking behind those areas where it is indirectly and where it is not obvious that the actions were purposely damaging and criminal. I am absolutely happy to come back with that. Thank you very much, and that concludes this evidence session. Minister for your attendance. I say to the committee that our next meeting is on 8 December, when we will consider draft reports on this particular bill, so we need a little bit of information prior to that. On the draft budget 2015-16, we will also consider our work programme. I remind members that, if I have to, the human rights debate will take place this Thursday afternoon. The motion has been lodged at the chamber desk, and committee members may wish to support the motion before the debate. You are invited to support the motion. I will lead for the committee and John Finnie will sum up for the committee. Thank you very much. That is the close of business.