 Lly Lizard y Prif Weinidog. I welcome everyone to the 30th meeting of the Justice Committee in 2015 and I ask everyone to switch off mobile phones for other electronic devices. No apologies have been received and I welcome Patricia Ferkerson who is with us for Item 2. i cymryd iawn, i'r leidau Eisteddfodau yma yn y尔bwyll yn y maesrach Melfedersiau am yr Aeg Lord. Fythdaeth yma. Mae'n gallu gwybod yn hitu hynna? Mae cysylltu hynny'i ddim yn y maesrach 1. Fythdaeth yma yn ddelig yn yr aeud? Yma. Oni ddim yn gydag? Oni ddim. Oni ddim. Mae'n ddigonol er gael i'r maesrach Melfedersiau ac yma yn y maesrach Melfedersiau yng Nghymru, 56, 2, 2, A57, 3, 4, 5, 5, 8, 6, 58 and 7. Margaret please to move amendment 1 and speak to the other amendments in the group. Thank you, convener. During the consideration of stage 1, the committee came to the conclusion that there was no need for a mandatory FAI, because some deaths of those detained under mental health legislation were straightforward. The decision was influenced by the mental welfare commission's comments about the number of deaths of detained patients being as a result of natural causes. However, in preparation for the stage 1 debate, I revisited Lord Cullum's review and note that he states, even investigations into deaths by natural causes may reveal unsafe conditions. It is in the public interest that an FAI should be held into the deaths of those detained by the state, especially those who are the most vulnerable. I am therefore not convinced that the monitoring and investigation of cases by the mental welfare commission is in itself an adequate safeguard for protecting some of the most vulnerable people in society. This is particularly the case if those individuals have no family members to advocate for them. It is this scenario that has prompted amendment 2, which provides for mandatory FAIs for deaths A in mental health detention or B on receiving treatment on a voluntary basis, but with an opt-out provision. Both the mental welfare commission and the Royal College of Psychiatrists expressed concern that the mandatory FAIs for the approximately 73 deaths a year of patients detained under mental health legislation would vastly increase the number of FAIs. However, that fails to take account of the effect of amendment 5, in my name, which puts in place an opt-out provision for the Lord Advocate, provided that he gives reasons to satisfy why he considers no FAI necessary. As the authorities are confident at present that the vast majority of those deaths are easily explained, that should not be an onerous provision. Crucially, however, the opt-out and the compulsory explanation required will ensure that patients have no family members to advocate on their behalf that the conditions and circumstances of the deaths of those individuals detained by the state are properly scrutinised. Hence, that ensures complete accountability and transparency regarding those deaths. Furthermore, in England and Wales, all deaths under compulsory and mental health detention are subject to an inquest by the coroner unless it has been ascertained that the death was from natural causes. To put the necessity for those amendments in perspective, in 2013-14, the number of deaths in formal detention in Scotland under mental health legislation was 60. In informal voluntary admission, it was six times as many, 364. Given that, my amendment not only provides important safeguards but also ensures compliance with article 2 of the European Convention of Human Rights, the right to life. The state has a general duty to protect life and it is therefore only right that the deaths of those detained by the state are thoroughly scrutinised. However, I have taken on board the comments about the number of cases that this may involve. Although this is not a reason in itself to exclude the deaths of individuals who have voluntarily received treatment for a mental disorder, I do consider the amendments in the name of Alison McInnes, which complement the amendments in my name, strike the right balance at this time. I therefore move amendment 1 in my name. Alison McInnes is pleased to speak to amendment 56 and other amendments in the group. I welcome this chance to speak on those amendments in section 2 of the bill. This section sets out the circumstances under which mandatory public inquiries into certain deaths are to be held. The bill, as it currently stands, fails to include a number of Lord Cullen's recommendations, as Margaret Mitchell has said. I believe that when the state has the responsibility for the health, safety and ultimately the life of someone, there should be an inquiry into what went wrong should they die. We are talking about losing society who are the most vulnerable such as older people and patients with mental health problems. The Scottish Human Rights Commission has said that steps need to be taken to ensure that the systems of investigation meet the article 2 requirements outlined above and to remedy what is currently a lot of gaps and confusion in the system. I know that Richard Simpson did some sterling work on the mental health bill and I note that a review into how deaths of those detained under mental health legislation will take place. I also understand that the timescale for that is up to three years. It is good to have the review, but I think that we need to deal with this issue in the interim. I will therefore support Margaret Mitchell's amendments. Ms Mitchell's amendment 2 is the main amendment in her group. I am concerned that it goes too far by including mental health patients who have been admitted to hospital voluntarily. My amendment 2A removes that requirement. My amendment 5A removes the Lord Advocate's discretion to not hold an FAI if the patient who has been detained was receiving compulsory treatment. Similarly, my amendment 57 introduces a requirement to hold a mandatory FAI for patients with dementia who immediately before their death receive prolonged treatment using psychotropic medication. That type of medication causes sedation, confusion and movement difficulty. Overuse of those drugs in this situation has been implicated in the increase of the chance of a stroke. A number of organisations, including the Mental Welfare Commission, have raised concerns about the widespread use of those drugs in a care home setting. In this case, the most vulnerable people in our society deserve our attention. There have been a number of high-profile cases where families have raised concerns about the circumstances of what appear to be deaths by natural causes. It should be the responsibility of the state to investigate and learn from any mistakes made in an open and transparent way. My amendments 56 and 58 are consequential amendments. Margaret Mitchell referred to Lord Cullen's report, but I think it's fair to point out that Lord Cullen's report didn't deal with the question of voluntary admissions. Alison McInnes does accept that by proposing to delete that bit from Margaret Mitchell's amendment. I think that we should remember that, at the present time, there is a discretion to hold fatal accident inquiry in any event, if there were concerns on the part of the Lord Advocate, so it's not quite a black-and-white situation. References have also been made to section 37 of the Mental Health Act, which has recently been passed, which composes a duty on the Government to review the arrangements for investigating the deaths of patients. Obviously, the timescale for that is within three years. It would perhaps be helpful if the Government could expedite that, but I don't think that this bill at this time is the appropriate time to review and change the current position. Finally, in relation to the question of deaths where patients have been treated with psychotropic drugs, I am very sympathetic to the issue here. I think that there is an issue about the usage of psychotropic drugs and whether the guidelines, which are now nine years older, are still appropriate. Again, I think that that's a wider issue and not something that I think we should seek to encapsulate in the debate on these amendments. The issue for me is about the relationship between the state and the individual. It's also about the perception. I think that any member of the public listening would find Margaret and Alison's comments very measured, and I will certainly be lending my support to that. One point that I had talked about was the discretion of the Lord Advocate. I think Mr Campbell is absolutely right that there is a possibility of discretion from the Lord Advocate to have an inquiry, but more to the point regarding the families of the disease. Whatever families or no families that don't think that the Lord Advocate will make any kind of judgment to hold an inquiry or not an inquiry, resisting pressure from families or not. I think that a Lord Advocate will decide to have an inquiry, whatever families are around the victim or not. I have a lot of sympathy for those amendments too. In answer to what Roddy Campbell was saying, having the discretion to have an FAI and not using it is not the same as being required to have one and being able to opt out, because if the Lord Advocate decides not to hold an FAI, there will be some sort of explanation. Given the vulnerability of the people that we are discussing at the moment, particularly those people who are compulsorily detained, I think that having that sort of reassurance in terms of why it is not being held but to know why it is not being held would be welcome. To Alison's amendments on people who have been treated by psychotropic drugs, it is an important issue. I am not sure whether it needs to be in the bill, but I certainly think that some sort of reassurance is being looked at in a very serious way. If the minister is able to give us that sort of assurance, that would be helpful. I have to say that I am very sympathetic to the arguments. However, I take a fairly plain view of things that something is either mandatory or it is not mandatory. There are, as has been explained, discretions on whether or not one holds an inquiry in certain circumstances, but what sustains me in keeping this position is section 8, under reasons for decision not to hold an inquiry, where I think that we made progress where family members did not need to request it, it would be issued in any event. I think that we have quite a lot of people policing the Lord Advocate now if there was a decision not to hold an FAI in any of the circumstances described by my colleagues here. Not only would we have the mental welfare commission or the care commission but we would have the press. There are pressures on the Crown Office quite rightly now and it is also embedded in this act. While I accept the arguments that I have put forward, I come back to the thing that it is mandatory or it is not mandatory and where one feels that discretion has not been exercised properly, the Crown Office must give reasons for that. Again, that would be subject to a wide range of scrutiny. I am satisfied as long as we find section 8 as amended in the way that we had asked. The group includes amendments in the name of Margaret Mitchell, which would require mandatory FAIs into the deaths of patients in hospitals receiving mental health treatment on a compulsory or voluntary basis, as we have just heard. Mental health patients who die whilst receiving treatment in hospital for something such as a heart attack or cancer, which is unrelated to their mental health condition, would be affected by this proposal. It is difficult to see how the public interest is served by holding an FAI in such circumstances. Currently, the Mental Welfare Commission is automatically informed of any deaths of detained patients and has a discretionary power to carry out its own independent investigation and inquiry. The commission already lazes with the Crown Office in cases in which they feel may merit an FAI. Therefore, if there was any suspicion or suggestion that a death was the result of the inadequate or inappropriate treatment, that death would already be investigated by the Mental Welfare Commission and or by the Crown Office. The Crown Office is also updating its guidance to medical practitioners to ensure that any or all deaths, while subject to compulsory treatment under mental health legislation, are reported to the Procurator Fiscal and would therefore be investigated as appropriate in common with all other sudden, suspicious or unexplained deaths of which it should be noted that only 50 to 60 finally result in an FAI. It is highly significant that neither the Mental Welfare Commission nor the Royal College of Psychiatrists support having mandatory FAIs for detained mental health patients. They believe and we agree that such a provision would be disproportionate and, as I said before, potentially lead to unnecessary distress for the family of any deceased person. In response to this amendment, the Royal College of Psychiatrists have said, and I quote a convener, that it is stigmatising to suggest mental health care and treatment should be subject to special scrutiny in relation to patient deaths bearing in mind the commonality of mental health problems and physical illness prevalence. We would oppose any amendment seeking to change this at stage 2 and we urge the committee to reject any such amendments. The committee will be aware of new provision at section 37 of the Mental Health Scotland Act 2015, which has been referred to, which requires that ministers carry out a review within three years of the arrangements for investigating the deaths of patients who, at the time of the death, were detained under either the Mental Health Care and Treatment Scotland Act 2003 or the Criminal Procedures Scotland Act 1995 or alternatively who were admitted voluntarily for treatment for mental disorders. The Mental Welfare Commission, again, quote, believes that this review is an important opportunity to create a system of investigation of deaths of psychiatric patients, which is proportionate, streamlined and effective. And, again, I quote, I believe that the priority should be for the review to be established and for its work to begin. I wish to reassure members of the committee and indeed other members present that the review of the arrangements for the investigation of deaths of mental health patients will commence as soon as possible and, in fact, initial discussions are already taking place with stakeholders. The Scottish Government will consider with stakeholders the scope of the review and in doing so will consider whether it is possible to ensure that there are safeguards to protect against any alleged deaths of patients as a result of covert treatment or compulsory electroconvulsive therapy. I do not believe that it would be appropriate or sensible to legislate to extend the mandatory category in relation to deaths of mental health patients in advance of the work of that review, arising from section 37 of the Mental Health Scotland Act 2015. Amendment 5, in the name of Margaret Mitchell, provides discretion for the Lord Advocate to not hold a mandatory FEI where there has been an investigation or inquiry by the Mental Welfare Commission. Such investigations by the commission are, however, only carried out by the commission where there has been apparent ill treatment, neglect or deficiency in care. The amendment as drafted would therefore have the effect to require FEIs to be held in cases of natural cause or expected deaths. Amendment 7, in the name of Margaret Mitchell, would amend section 8 of the bill, which places a duty on the Lord Advocate to provide written reasons where it has decided that an FEI is not to be held when requested to do so by the nearest relative. As the convener has indicated, this amendment requires the Lord Advocate to give written reasons in all cases when it has been decided that there will be no FEI for a death of a patient in hospital receiving mental health treatment. In those cases, written reasons would have to be given crucially without a request, even having been made by the nearest relative, as the convener has indicated. For all other types of cases, a request needs to be made before the Lord Advocate's duty takes effect. There is simply no good reason to make the rule different from mental health cases and all other cases. What is important is that the Crown Office maintains a level of contact with the bereaved family that they have indicated that they want, and we believe that there are better ways of achieving this than through the amendment. Indeed, the need for tailored support and guidance for individual family circumstances is exactly the sort of thing that will be provided for in the Crown Office's proposed family liaison charter. I agree with the committee's observation in its stage 1 report on Patricia Ferguson's inquiries into death's bill that if the scope of mandatory FEIs is extended to include the deaths of those detained under mental health legislation, the number of inquiries will rise significantly and therefore the financial impact would be significant. It will, of course, be even more significant if voluntary patients are also included. Although I take the point that Alison McInnes's amendment 2A would remove voluntary patients from amendment 2, the Scottish Government still cannot support mandatory FEIs into mental health-related detention or compulsory treatment. Based on data from the Scottish Government and Mental Welfare Commission each year, there are approximately 78 deaths of patients subject to detention or compulsory mental health treatment. If mandatory FEIs were to be held into all of those deaths, that would, at a stroke, more than double the number of FEIs in Scotland per annum. At least 39 of those deaths died from natural causes where the death was expected, but their deaths would have triggered mandatory FEIs under those proposed arrangements. I note that there were 424 deaths of psychiatric inpatients in 2013-14, which includes voluntary patients. The amendment could therefore potentially increase the number of FEIs sevenfold. I think that it is hugely important to consider that those proposals may not be welcomed by brief families of mental health patients themselves who may not wish to have the death of a loved one in psychiatric care become the focus of a fatal accident inquiry held in public. We have similar concerns with regard to the amendments in the name of Alison McInnes, which would, as drafted, require a mandatory FEI into the death of any patient suffering from dementia who is receiving treatment in a hospital or care home service and being treated with psychotropic drugs for the three months leading up to their deaths. As stated in the recent letter from the Mental Welfare Commission, patients suffering from dementia often die whilst receiving treatment in a hospital for something such as a heart attack or cancer, which is unrelated to their mental health condition, including dementia. I note the point that Alison McInnes made about strokes, although I take that on board. Hopefully, the review will be able to look at that particular issue. Similarly to Margaret Mitchell's amendments, the natural cause deaths would be affected by the proposal. In my opinion, it is difficult to see how the public interest would be served by holding an FEI in such circumstances. Those amendments, in effect, imply that using psychotropic medication with people with dementia is a bad thing and requires extra scrutiny. I take the point that Alison McInnes has made. It is my understanding that patients with dementia often experience aggression, agitation, loss of inhibitions, delusions and hallucinations, which can regrettably require psychotropic medication. I further understand that clinical guidelines and safeguards are in place on the appropriate use of anti-psychotics to help to manage these distressing symptoms. The committee will be possibly aware of an upcoming review of treatment of learning disability, autism spectrum disorder and dementia within the Mental Health Care and Treatment Act 2003. The Scottish ministers committed to the review during the passage of the Mental Health Scotland Act 2015 and the Mental Welfare Commission will be consulting the key stakeholders in early 2016 to begin to scope the content and detail of the review. In view of that review and the statutory review of the arrangements for investigating the deaths of mental health patients under section 37 of the 2015 act, I firmly believe that it would be premature and inappropriate to legislate to extend the mandatory category in relation to deaths of dementia patients in advance of the review's work and recommendations. Amendment 5A in the name of Alison McInnes amends amendment 5 by ensuring that the deaths of mental health patients subject to compulsory treatment under part 7 of the Mental Health Care and Treatment Act 2003 would not be an exception under section 3, meaning that a mandatory FEI would be required in every such case. We do not have exact figures for the number of deaths that could be captured by this amendment, however, we have been assured that the impact would be so fundamental that it would overload the system of fatal accident enquiries, as well as leading to unnecessary distress for families and, indeed, potentially staff. Although we understand and very much sympathise, as committee members do, with the members' concerns regarding this group of vulnerable people, for the reasons that I have set out and that have also been set out by both the Mental Welfare Commission and the Royal College of Psychiatrists, the Scottish Government does not support these amendments and, instead, believes that having discretionary FEIs for such cases strikes the right balance. For all of these reasons, I would ask the members not to press their amendments. It's really for Margaret to wind up, but I don't know if, Alison, if you want to respond. I thought I'd give it your writing there, so I thought you might want to respond a little bit. I'm grateful for the opportunity to do so, convener, and I'm also grateful to the minister for the assurances that he's put on the record today, particularly in relation to my amendment 57 round about the concerns that even Roddy Campbell acknowledged were live issues at the moment. I'm grateful that the review might well be as already in the process of being commissioned. On that basis, I certainly don't need to say anything at the moment. Margaret, please, it's for you to wind up and press it with Roddy. Thank you, convener. If I could address the stigma issue that the minister has brought up that somehow having a mandatory FOI for those mental health patients detained, could I perhaps refer him to the comments from Enable Scotland? We think that the deaths of people detained under the mental health care and treatment Scotland act 2003 should be included in the mandatory category. Those individuals who have been deprived of their liberty should have the same protection as those detained in prison or presale. I think that that quite conclusively explains that there is no stigma. There is definitely a fairness issue here and a justice issue. In terms of the convener's comment, it's either mandatory or it isn't. I think that what that fails to take account of is the fact that, yes, it's mandatory with a knockout and the change of emphasis is giving this added protection to this very vulnerable group of individuals and also, I would argue, insurance compliance with section 2 of the European Convention of Human Rights, the right to life. The minister has made much and again I've taken on board his comments in the Royal College of Psychiatrists' concerns about the number of cases that could be added to the FAI workload if my amendment were to be passed. However, it's for this very reason that I provided a knockout to a mandatory FAI for the Lord Advocate if the Lord Advocate considers that this is not necessary. Importantly, if he also states his reasons for that, that's important for transparency and accountability. If it's natural causes and the death is so obvious, it isn't going to be onurous on him to give these reasons and it isn't going to add substantially to the number of deaths in that category at present. I note the review of the arrangements already being talked about by Alison Ann, the minister for investigating the deaths of patients receiving treatment for a mental disorder. While the times table seems to be moved forward, this is still, I think, within three years of the provision of the 2015 Mental Health Scotland Act coming into force. However, I also note that there were 424 deaths last year of such patients, of which 60 were in the compulsory detention category and a concerning 364 were voluntary. That is certainly an issue to be revisited in the future. In the meantime, I urge committee members to support my amendments, which I consider, in conjunction with the amendments lodged by Alison McInnes, to provide the right balance and protection for those mental health patients who are, by any standards, a very vulnerable group of people. I press amendment 1 in my name. The question is amendment 1 be agreed to, are we all agreed? No. We are not agreed, there will be a division. Those in favour, please show. Those against, please show that amendment is agreed to. I call amendment 52 in the name of Alison McInnes group with amendments 53 and 54. Alison is pleased to move amendment 52 and speak to the other amendments in the group. The group amendment yet again refers to section 2 of the bill, of course. My amendment 53 is the main amendment in this group. It introduces the requirement to hold a mandatory FAI as a result of the death of a child who is looked after by the state, even if they lived with their parents or guardians at the time of their death. When social services are involved, there is usually a good reason for it and it becomes our responsibility to keep those children safe. While acknowledging that there is a limit to what a social worker can do, we also need to recognise that lessons need to be learned should any mistakes be found to have been made in those tragic situations. We are not talking about a great many cases, as described in my amendment, but I hope that we can all agree that even one child who has died while being looked after by the state is too many. It is important that we have a mechanism in place that would require any such cases being considered in an open and transparent way, as offered by an FAI. Together, the Scottish Alliance for Children's Rights and their written submission to the committee did argue for that position and said in its submission that the proposal for FEIs for children in secure accommodation is welcomed but should be widened to include all looked after children. The Scottish Government has a direct responsibility for all looked after children, regardless of whether they are in secure care, residential care or foster care. As such, any death of a looked after child must be investigated regardless of placement type. I think that you need to bear in mind that there are current regulations that are looked after children's Scotland regulations 2009, which provide that any deaths are required local authorities to report to Scottish ministers and indeed the care inspectorate within one day. One assumes that the care inspectorate has that report that they will carry out in enquiry that they are concerned that they will in turn report to the Crown Office. We could at that point then have a discretionary enquiry launched by the Crown Office. I think that we should bear that in mind in considering that. We did not take much in the way of oral evidence on this point. There were some written submissions and I noticed in a recent letter to the committee that the Centre for Excellence for looked after children argued reasonably strongly against the idea of having mandatory enquiries. There is by no means a uniform view among the professionals in that area. The group of amendments in the name of Alison McInnes would require mandatory FEIs into the deaths of children looked after by a local authority. This provision would affect every natural cause and expected death of looked after children, many of which are as a result of life limiting conditions. It is difficult to see how the public interest, including the families, would be served by holding an FEI in such circumstances. Those amendments fail to recognise that a judicially led enquiry is not the only means of investigating the deaths of children in the care of the state. As confirmed by Glasgow City Council during stage 1 evidence, the deaths of looked after children are already provided for through the reporting requirements of the looked after children Scotland regulations 2009, which require local authorities to notify the Scottish ministers and the care inspectorate of a death within one working day. This reporting responsibility had been further extended by the Children and Young People Scotland Act 2014 to include the reporting of deaths of any care leaver up to the age of 26 and any young person in a continuing care placement. Deaths of children in residential establishments, half of which are as a result of life limiting conditions and other health issues, are investigated and reviewed by the care inspectorate. The care inspectorate identifies any lessons to be learned and makes recommendations for the review of legislation, policy or guidance. Such deaths are already the subject of investigation by the Procurative Fiscal and the Lord Advocate has discretionary power to hold an FEI into such deaths when it is considered to be in the public interest. The Crown Office leases with the care inspectorate and refers to its reports to inform decisions on whether to hold a discretionary FEI. The committee will also be aware of the child death review. Ministers agreed that Scotland should set up a national child death review system to review the deaths of all children and young people, not just those in care. A steering group met between January and June this year to develop a model for the system, its reporting recommendations will be submitted to ministers very shortly. I do not believe that it would be appropriate or sensible to legislate to extend the mandatory category in relation to deaths of looked after children in advance of the work of that review. The care inspectorate reported that there were 30 deaths of looked after children in Scotland in the three-year period 2009 to 2011. That could mean an additional 10 FEIs per year as a result of that provision. However, the resource impact is of course not only the only consideration. Both Glasgow City Council and the Centre for Excellence for Looked After Children in Scotland during stage 1 evidence did not support extending the mandatory category in this way. Glasgow City Council considers the current arrangements for the reporting and review of deaths of looked after children that I just described to be suitable and sufficient. The Centre for Excellence for Looked After Children did not recommend making this a mandatory category because it said that there was no certainty that it would lead to improvements in services for looked after children and those leaving care. In its letter of 19 October to the committee, it reiterated its view that it was not necessary to extend the provision for mandatory FEIs to all accidental or sudden deaths of looked after children in residential care. On the basis of the points that I have set out above, the Scottish Government does not support these amendments and agrees that the provisions in the looked after children regulations, children and young people act 2014, combined with having discretionary FEIs for such cases, strikes the right balance. Those proposals would, we believe, not be welcomed by bereaved families of looked after children. Some looked after children, continued to live in the family home following involvement with the children's hearing system. 11 of the deaths in 2009 to 2011 were of children living at home or with relatives. Others live away from their family home, such as with a foster carer or in residential accommodation. 12 of the deaths reported were in residential care and four were in foster care. Children usually become looked after to promote their care, such as respite care for children with complex difficulties or disabilities and to protect them, for example from neglect or abuse. Families and those known to the child may not wish to have the death become the focus of a public inquiry. I would also remind the committee that, under the bill, as it stands, the death of a child in secure accommodation would trigger a mandatory FEI. For all of those reasons, I would ask the member to withdraw her amendments. Alison Johnstone, to wind up press or withdraw, please. I would caution the minister on making cases about the resource impact. I think that that is the weakest argument about it. If there are a number of cases that need to be investigated, then they need to be investigated. I do not agree with you about that. I do like to hear resources coming in because it should be in principle. That aside, I think that the minister has set out a detailed reason as to why not. I consider this group of amendments 52, 53 and 54 to be probing amendments to test where the Government is on all of this. I am grateful to hear more about the review and under those circumstances I will not press amendment 52. I beg your pardon, so you have got seat leave to withdraw. I think that they are going to let you do it. Amendment 56, in the name of Alison McInnes, is ready to make amendment 1, move or not move. Amendment 2, in the name of Margaret Mitchell, is ready to make amendment 1, move or not move. Amendment 2A, in the name of Alison McInnes, is ready to debate with amendment 1, Alison, move or not move. Amendment 2A agreed to, are we all agreed? We are not agreed, there will be a division in favour of police show. Those against police show, 5, 4, 4 against that, amendment is agreed. The question is, amendment 2A is amended and agreed to, are we all agreed? There is not an agreement there, there will be a division those in favour please show. Isi gyda cyllidell? It is five in favour of four. Against that amendment is agreed to. Call amendment 53 in the name of Alice McKenisall-Redd wedi bod yn menw at 52. Mover, not move. Call amendment 57 in the name of Alice McKenisall-Redd wedi bod yn menw at one. Mover, not move. Not moved. Call amendment 3 in the name of Margaret Mitchell. Already made the amendment one. Mover, not move. Moved. The question is amendment 3? Be agreed to? Are we all agreed? Yes. Is it against, please or show? It is against recommendation 5. 5 in favour for against that amendment. Siwy fawr aniedg sensei. 5 in favor of at meet, on the right sex? 5 in the name of-market Project Bitch or amendment 5A, in the name of Alice McKinnessal, in the name of amendment 1, move or not moved? Not moved. Not moved. The question is amendment 5B agreed to, are we all agreed? We are not agreed, there will be a division. Those in favour please show. Those against please show. It's 5, 4, 4 against that amendment is agreed to. The question is that section 3B agreed to, are we all agreed? The question is amendment 6, in the name of amendment 5A, in the name of amendment 1, move or not moved? Move. The question is that section 6B agreed to, are we all agreed? No. We are not agreed, there will be a division. Those in favour please show. Those against please show. It's 5 in favour, 4 against that amendment is agreed to. The call amendment 54, in the name of Alice McKinness, is ready to wait with amendment 52. Alice will move or not move? Not moved. Call amendment 58, in the name of Alice McKinnessal ready to wait for amendment 1, move or not move? Consequential and not moved. The question is section 4B agreed to, are we all agreed? Fel ydych chi'n deithas a chrys ffaith wleiddoch i ddeithas gyda'u amddangos hynny, neu dwi'n ddweud yn gwneud y fawr ar gyflym i'i ddeithas i ddweud i trefnoddyc. Mynd yw'n gwneud y bydd honno, mae hynny yn gwneud ar y bod yn ei gyflorog i'i wneud i ddeithas i Llyfrgell wedi amgylcheddol yn y ddau gwael yn y beth sy'n meddwl hwnnw ni'n ddeithas o bob ei gweithio i ddweud i ddweud i ddeithas i wneud i gwybod ei wneud i gwybod, repatriation of the body, mainly because that was what Lord Cullen recommended in his review of the AFI legislation, but also because this mirror is the practice in England and Wales. The coroner's duty to investigate a death abroad only arises if the body is returned to the coroner's district and the circumstances are such that an inquest would have been held if the death had occurred in England and Wales. The solicitor general, when she gave evidence to the committee at stage 1, indicated that repatriation of the body may provide crucial evidence of the cause of death. Repatriation obviously opens up the possibility of a post-mortem being held in Scotland, and when a body is repatriated from abroad, it may be accompanied by a death certificate from the foreign authority, which may also provide useful evidence. This may or may not, depending on the standard of the examination carried out abroad, confirm the results of examination of the body. It is accepted, however, that there may be instances where it is simply not possible for the body to be repatriated. The body may not be available because it may have been destroyed in the accident that caused death, or the body may have been lost possibly at sea. It may also be the case that it is simply not possible to repatriate a body on grounds of cost. Advice from the Foreign and Commonwealth Office is that bereaved families may wish to consider the cremation of a body in the country where the death occurred. That is partly as a result of the significant expense of the repatriation of a body, but it also means that a family may have a body cremated before they become aware of the possibility of a death investigation and possible FEI in Scotland. The Scottish Government is liaising with the Foreign and Commonwealth Office, with a view to its guidance being updated with the new arrangements coming into operation as smoothly as possible for families. I know that the committee raised the issue of repatriation of bodies as an area of concern very early in its consideration of the bill and has consistently pressed this point, including in the stage 1 report. I am very happy that the Scottish Government and the Crown Office have been able to take on board these concerns and are now able to agree that repatriation should not be required. The important discretion afforded to the Lord Advocate in sections 6, 3B, C and D will remain in place. That means that the Lord Advocate would have to consider that the circumstances of the death have not been sufficiently established in the course of an investigation in relation to the death, that there is a real prospect that those circumstances would be sufficiently established in an inquiry and that it is in the public interest that an inquiry be held. We should also be careful of raising unreasonable expectations among the bereaved family that an inquiry would definitely be held and of what an inquiry in Scotland might be able to achieve. The Crown Office will have to rely on the Government and legal authorities of the country in which the death occurred and standards of investigation and co-operation vary across the world. It is expected that it would only be in exceptional circumstances that the Lord Advocate would decide that a death investigation and possible FEI were merited in the absence of repatriation of the body, but it is a very important advance that this possibility should exist, particularly as this is not the case in England and Wales, so I move amendment 8, convener. The repatriation of the body is not required in England and Wales. It was not required by this committee either. It is required in England and Wales. It is. It is. We have done a good deed then here in this committee. We have gone beyond practice in England and Wales. Christian, in particular in your area, I want to show my appreciation for the Government to have listened to the committee, particularly for a lot of families in the office of Scotland who have a lot of people working abroad, a lot of them working offshore, and I think that we would be all delighted of the news that in exceptional circumstances there will be a possibility to have an FEI without the body being recovered. It is a kind of common sense amendment, and I take it open to wind up, minister. The question is that amendment 8 be agreed to, are we all agreed? The question is that section 6 be agreed to, are we all agreed? The question is that section 7 be agreed to, are we all agreed? Call amendment 59 in the name of Patricia Ferguson in a group in its own. Patricia, please, to move and speak to that amendment. Thank you, convener. A sudden death in a family is a difficult experience, and the sudden death of a family member in circumstances that might require a fatal accident inquiry is likely to be particularly traumatic. We have all heard of incidences when the experience is exacerbated by the time lag between the death and the decision about whether or not an FEI is to be held, and there has often been a feeling that many families have articulated that they have not been comfortable with the way in which information has been communicated to them. My own bill sought to introduce time limits within which that decision should be made and for communication with families affected by that decision. Those ideas, however, did not meet with universal approval. In the meantime, the Crown Office and Procurator Fiscal Service had begun to draw up a charter detailing how such communication with bereaved families should take place and when it would take place. I believe that the charter is an important improvement on the current situation, so I am content to support the idea of a charter and to table that motion. However, it seemed to me that the provision of such a charter should be underpinned in the legislation, and that, while the Lord Advocate should retain the right to revise the document from time to time, he or she must lay the charter and any revisions that might be made before Parliament. I am very grateful to the Minister for facilitating this amendment, and I hope that the committee will support it and I move it. I support the amendment to anything that increases our understanding of the families of the system and how it is supposed to operate and is to be welcomed. I congratulate Patricia Ferguson on pursuing this, because it is a bewildering process for families. Any co-process is bewildering, but an FAI is coping with the loss of a close member of family in a process that is in the public interest. Sometimes they feel that they are on the sidelines to it, so it may be a very important progress in that. I do not sound patronising, because there are not many of us. It is a good point that members' bills are useful for those things. At stage 1, I welcomed the commitment by the Solicitor General to consult on and produce a charter of investigation milestones that will address concerns over keeping bereaved families informed about the death investigations and complement the provisions in the bill to make the FAI system more efficient. I want to acknowledge Patricia Ferguson's role in raising that agenda. I welcome the committee's comment in its stage 1 report that the publication of a milestone charter should help to address the delays in the FAI process. Bereaved families must be kept better informed of progress throughout death investigations, and although I believe that the Crown Office has made great strides in this area in recent years, particularly since the establishment of the Scottish Fatalities Investigation Unit, I believe that the charter will provide a clear and easily understandable guide for families of what to expect from the investigative authorities at the Crown Office at the time of great strain and distress to them. The charter aims to provide guidance on what the bereaved families should expect from the Crown by way of the provision of information about death investigations and the timescales within which that information will be provided. The Crown Office will communicate with families in the manner in which the family prefers. That could be face-to-face meetings by letter or phone call. It is proposed that, in cases requiring further investigation with a view to deciding whether criminal proceedings should be instigated and or whether an FEI should be held, the Crown will make contact with bereaved families three months after the date that the death has been reported to Crown Office Procurator Fiscal Service. They will offer the family a personal meeting within 14 days to give them an update on the progress of the death investigation. They will also give them an idea of the likelihood of criminal proceedings and the possibility of an FEI. It is also proposed that the charter will explain the different stages of a death investigation and set out the commitments of the Crown Office in terms of keeping in touch with relatives. It is proposed that it will contact the families every six weeks after the initial contact. The charter will also include a frequently asked questions section and links to further information. I am therefore delighted to welcome this proposal by Patricia Ferguson to give the charter statutory underpinning. The amendment places a duty on the Lord Advocate to prepare and publish the charter and specifies what should be included in the charter, though it will be subject to occasional review and the charter must be laid before the Scottish Parliament. I would like to take this opportunity again to thank Patricia Ferguson for all her work on FEIs and for agreeing to discuss areas of potential common ground, as recommended by the committee in its own report. We have had an open and constructive discussion on areas where there was common ground for collaboration to improve the FEI system by strengthening the Scottish Government's bill. The amendment is one of two that we have agreed with Patricia Ferguson. The Government is happy to support the amendment by Patricia Ferguson, and I would ask the committee to do the same. Patricia, to wind up, please. I am happy to meet your convener. Questions amendment 59 be agreed to. Are we all agreed? Call amendment 7, in the name of Margaret Mitchell, ready to amendment 1. Margaret, to move or not move. Moved. The questions amendment 7 be agreed to. Are we all agreed? Yes. Are we agreed? We are not agreed. There will be a division. Those in favour, please show. Those against, please show. It is 5, 4, 4 against. That amendment is referred, agreed to. Yes. I have been told to slow down. The questions that section 8 be agreed to. Questions that section 9 be agreed to. Are we all agreed? Call amendment 9, in the name of the minister group with amendment 55. Minister, please, to move that amendment and speak to the other amendment in the group. Thank you, convener. Amendment 9 is a technical drafting amendment that is intended to bring a reference in section 10, which relates to those persons who are entitled to participate at a fatal accident inquiry into line with that in section 2, 3, for reasons of consistency and clarity. The provision in section 10 ensures that the employer of someone who is killed in the course of their employment is entitled to participate at the mandatory FEI, as was the case under the existing fatal accidents and sudden deaths inquiry Scotland Act 1976. Elaine Murray's amendment 55 would give her a statutory right of participation in a fatal accident inquiry to a trade union or staff association representative if the deceased was a member of that trade union or staff association at the time of death and they died in Scotland as a result of an accident in the course of their employment or occupation. The committee, in its stage 1 report, stated that, "...we believe it is imperative that families, trade unions and staff associations are able to participate in a meaningful way in an FEI and that families are represented appropriately and are kept informed throughout the process." The Scottish Government agrees with this statement. As the convener noted on 12 May, the bill provides in section 10, subsection 1e, that any other person who the sheriff is satisfied has an interest in the inquiry may participate in the inquiry proceedings in relation to the death of a person. The Scottish Government considers that subsection 1e would permit the sheriff to allow a trade union or staff association representative to participate in an accident at work fatal accident inquiry if he or she thought it appropriate. Nonetheless, in light of the committee's stage 1 report, the Government is content to support amendment 55 in principle, subject to exploring with Dr Murray whether any adjustments to the wording should be made at stage 3 to ensure that it gives full effect to the policy intention. I move amendment 9 in my name. The minister for making most of my case for me, I think that there are quite a few things there. I was going to say, I don't actually require to say. Now I'm certainly content to have a look at the wording. It was a little bit difficult to try to make sure that it's a member of a trade union who is relevant to the occupation, not that he might have another job and be a trade union member in some other employment, or indeed that it has to be at the time of their death rather than some previous occupation or membership and so on. It's maybe slightly clumsy in the way in which it is written, but I'm pleased that the minister is accepting it. It is important that trade union representatives and staff association representatives have a right to be there, not only because they may have information, which could be of assistance, but very importantly because they could be of significant support to the victims' families as well. I feel a tweak coming on. Tweaks are very fashionable. Anyone else wanting to come in? Minister, do you wish to wind up? I'm happy to leave it at that, convener. Question is, amendment 9 be agreed to or we all agreed. As the committee is aware, the bill has its genesis in the review of fatal accident inquiries undertaken by Lord Cullen at the request of the Scottish Government. One of the recommendations that he made that has not found its way into the bill so far is about the availability of legal aid. My own bill sought to explore that particular area, but I would recognise that it would go considerably further than Lord Cullen suggested. Lord Cullen, in my view, made two particularly important points in relation to legal aid. The first is that relatives often believe that the Procurator Fiscal attends an FAI to look after their interests, particularly if they are unrepresented. The Crown Office and Procurator Fiscal Service's own guidance makes it clear that that is not the case and also indicates that the role of the Procurator Fiscal is to represent to the court any matter affecting the public interest. The second point that Lord Cullen made was that FAIs take place whether or not relatives consent to it. If relatives want to participate, their ability to do so without representation is obviously limited and they can be at considerable disadvantage compared to other interested parties. Indeed, the Faculty of Advocates stated in evidence to Lord Cullen that it is impossible for relatives to participate effectively in important inquiries without legal representation. Although Sheriff JPM Murphy observed that the relatives quotes should not be expected to be capable of self-representation in the traumatic situation of an FAI, I have never seen a layperson do it adequately. The amendment in my name seeks to supply the normal tests around reasonableness and to supply the normal financial conditions and thresholds and requires ministers to come forward with a special scheme of conditions for relatives involved in FAIs. I have deliberately not been prescriptive about what those regulations should be but have instead left to minister the job of making that particular decision. However, I do so in the context of a presumption that legal aid will be available and that families will be able to be represented throughout the process, which has been an issue, and will not find that cash runs out partway through an FAI. It seems to me that this is a basic principle and one that I hope that the committee will support and I move. What Patricia Ferguson has said has backed up the evidence that the committee aired when we looked at this point in particular. As she quite rightly says, the Crown and Procurator Fiscal Service represents the public interests and the interests of relatives are not represented. I think that it is only right and fair that legal aid is available to ensure that those interests are represented. I am very much in favour of that. I am interested to see what the minister has to say on this point. Obviously, I accept that Lord Cullen reported in the James in 2009. Looking at our evidence session with Lord Cullen, I do not think that the committee quizzed him further on whether that would have remained his view in the circumstances in which we now are. Obviously, I think that no comment has been made about resources implications, but, in particular, I think that we should have regard to what the resources implications are of this. I will be interested to hear from the minister on that. I am sympathetic to the arguments. I do not think that I am going to support it at this stage, but I would like to hear at stage 3 further reasons if this fails. It might not, but whether the Government acts against it. In FAIs, it is very different from criminal proceedings, but there is an issue in FAIs about the deceased family and relatives not having even, in certain circumstances, any legal support of any kind. I would have concerns about a special case being made, but I do note the bit with no financial test. I would have concerns about that, but I do note the bit about what you have in your amendment must be made provision for financial conditions. I would like to see that developed. While I am not at this stage going to support it, I would like further inquiry and investigation by the Government into whether there might be something in regulations that is subject to test and financial test of a certain kind, perhaps, whereby there is support for relatives. I think that there is an issue here. It is a very new grey area of FAIs. While it is in the public interest, there are families sitting there who are bereaved and for whom it will open it all up again, in circumstances, as I said previously, where we have moved with the communications that the Crown has to make into involving people in the process more so that they get some support. That might be in form of explaining the legal process to them. I think that there is an issue that I would like the Government to explore further, but I am not at this stage, but I would like it considered. I note the comments that you have made. I am aware that a number of groups are supportive of Lord Cullen's recommendation to remove the reasonable test and that financial eligibility should be increased where relatives are seeking a civil legal aid for FEI proceedings. That is what amendment 60 aims to achieve. Relatives are obviously in a terrible situation, and I fully acknowledge that when they experience a death of a family member, it is important that they should be able to participate appropriately in an FEI where there is one, but that does not automatically require legal representation in every case. The purpose of a fatal accident inquiry is to investigate the circumstances of death in the public interest in order to try and avoid any future incident of the same kind. The procreator Fiscal leads evidence to establish the cause of death. Procreators Fiscal thus have a public duty to fulfil at the inquiry. They will meet with the family to discuss what witnesses and evidence they intend to produce at the inquiry and what questions they intend to ask. Often, the Fiscal will ask the family if there are any particular questions that they wish to be answered, but it can happen sometimes that the families have questions that the Fiscal does not feel that it would be appropriate for them to ask since they are representing the public interests. It may be that the families wish to ask questions that may be intended to establish whether there are grounds for civil proceedings following the fatal accident inquiry. In such cases, they may consider that they require their own legal representative to do so. If the family cannot afford to pay for such legal representation, they may be eligible to receive legal aid. The Scottish legal aid board can make legal aid available where a person entitled to be represented at a fatal accident inquiry can show that they have concerns, which the procreator Fiscal is not going to raise at the inquiry. Hopefully, the charter process will improve the openness of what the procreator Fiscal is going to do, and that will help to inform the family's actions at this point. The reasonableness test will therefore be satisfied if they can show that they have legitimate concerns and questions that the procreator Fiscal cannot ask in the public interest. The effect of the amendment would be that legal aid would become available more or less on demand for fatal accident inquiries. I note the point that the convener has made, and I understand that point fully and sympathise with much of what was said. Many FAIs will result in purely formal findings from the sheriff based on the evidence led by the procreator Fiscal. It is difficult to see the case for a guarantee of legal representation in all such cases. If legal representation became universal, the likelihood is that FAIs will become more adversarial, longer and potentially more costly. I understood that that was one of the key points that Patricia Ferguson wished to avoid. In the current financial climate, and I appreciate the points that were made early on in response to another point, but I have the lack of luxury here. I have to make these points, unfortunately, convener. In the current financial climate, during which the Scottish Government's budget has remained broadly unchanged in cash terms, controlling legal aid expenditure is necessary. Statutory tests of probable cause and reasonableness apply to any application for civil legal aid, although anyone who is eligible for legal aid will be granted it. The Government has prioritised maintaining the wide scope of matters for which legal aid is available in order to protect access to justice. Removing the reasonableness test for relatives and FEI cases would have a price tag. Legal aid expenditure on those cases varies widely from year to year, but we could expect an additional cost of at least £0.5 million per year. Although I appreciate the earlier comments about not wishing to reduce things to discussions about resources, they have a significant bearing on the Government's position, and that money would have to come from somewhere. In England and Wales, where there have been serious and swinging cuts to civil legal aid to save money, people there can no longer access legal aid to help with certain types of family medical housing and welfare benefits problems. In certain cases, people have to provide evidence that they or their children have been victims of domestic abuse or violence in order to get access to legal aid. I do not want to go down the route in Scotland. I want to put that on record. As I have already explained, if a family has concerns about support creative fiscal, it cannot address in the public interest. I stress the point that the charter will help to improve transparency around that and the engagement with the family. The likelihood is that the reasonableness test for legal aid will be satisfied. Where a death has occurred in prison, it will also be likely that reasonableness will be satisfied. Legal aid will be focused on the cases that deserve it so that access to justice can be maintained. I believe that the extension of the entitlement to legal aid at fatal accident inquiries proposed in this amendment is not only unaffordable, it is also unnecessary, and a balance has to be struck. I regret saying that because I appreciate the points that were made earlier on about resources, but I hope that the committee can appreciate that we are not in an easy position on that. I have a great deal of sympathy in many respects with the intention to make legal aid eligibility more certain. Unfortunately, I cannot support the amendment. Firstly, in response to Mr Campbell, I am not aware that Lord Cullen has repudiated his view. I would have thought that if he had changed his mind, he would have said so when he gave evidence to the committee. However, I would also point out that, in my view, that is a matter of principle and should not focus at all on the amount of money that it might cost. However, I will come back to that in a second. However, taking that point of principle, relatives are also capable of being pragmatic. I would point to the example that I know best, which was not a fatal accident inquiry, but in some ways was very similar, which was the stockline inquiry where there were 10 bereaved families, but only three representatives, because eight of the families came together and agreed that they would have one single representative for all of the people in that particular group, with two families deciding that that was not the way they wanted to go. Therefore, families can be pragmatic. With regard to the current role or the role of the Procurator Fiscals, the guidance that has come to Procurator Fiscals indicates that, and this is a guidance that they give to families, that it is unlikely that he or she will be able to adequately represent their interests and concerns of their inquiry, and that separate representation is considered appropriate. That is the guidance that families are being given by the Crown and Procurator Fiscals Service, convener. It seems to me to be very strange that we make those suggestions to them, or the state does. At the end of the day, we do not provide them with a methodology that allows them to access that representation, but I deliberately said that Scottish ministers should come forward with a financial contribution scheme. I have not left it as an open-ended blank check. I have left it open for the minister to work out a formula that would be acceptable. I would point out that the current situation, as matters currently stand, the Scottish legal aid board automatically treats the condition of reasonableness as met without question in the case of deaths in prison, for example. It seems to me that this is a provision that, in the interests of fairness and justice, more importantly, has to be taken forward. I very much hope that the committee will see fit to support it. I take your pressing. Those in favour, please show. Those against, please show and an abstention. That is 5, 4, 3 against and an abstention. That amendment is agreed to. Questions at section 11 to 13 be agreed to. Are we all agreed? I call amendment 10 in the name of the minister, grouped amendments 11, 19, 20, 22 and 23. Minister, please move amendment 10 and speak to the other amendments in the group. Amendment 10 is a technical amendment that simply clarifies what information the procurator fiscal must provide to the sheriff when giving the sheriff notice that a fatal accident in inquiry is to be held. The fiscal must, under section 141, provide the sheriff with notice that the inquiry is to be held at a brief account of the circumstances of the death. As far as it is known to the fiscal and any other information that is required by an act of sederant made under the bill, the existing section 14 subsection 2 requires the sheriff to make an order of fixing the date and place of a preliminary hearing if one is to be held and the date and place of the inquiry itself. At present, it only makes reference to the sheriff doing so on receipt of notice that the inquiry is to be held under subsection 1A. It does not make reference to the requirements of subsections 1B and C and the question arises as to what the sheriff should do if he or she does not receive this information. Amendment 10 removes this uncertainty by making it clear that the sheriff should receive all of the material set out in subsection 1. If the sheriff does not receive that material, then he or she will not be required to order the inquiry. Amendment 11 is a consequential on amendment 10. Amendments 20 and 22 are concerned with what material the procurator fiscal must provide to the sheriff if further inquiry proceedings are to be held under section 28 of the bill in the light of the new evidence in relation to the circumstances of the death. Amendment 22 requires the fiscal to provide the sheriff with a copy of the determination from the original inquiry into the death or deaths, as well as notice that further proceedings are to be held. Amendment 20 requires the notice of the further inquiry proceedings to include the material mentioned in section 30, subsection 1C and D. Amendments 19 and 23 are consequential. I move amendment 10 in my name. Members wishing to speak? No, I take it that you don't wish to wind up minister. Are we all agreed? I call amendment 11 in the name of minister ready to be with amendment 10 minister to move formally. Questions at amendment 11 be agreed to, are we all agreed? Questions at section 14 be agreed to, are we all agreed? Questions at sections 15 to 25 be agreed to, are we all agreed? I call amendment 12 in the name of minister group with amendments 13 and 14. I am pleased to move amendment 12 and speak to the other amendments in the group. This group of amendments are technical amendments to section 26 under which the sheriff can redact or withhold all or part of their determination from publication. Amendment 12 amends section 26 subsection 2, which sets out the Government bodies that should be given a copy of the determination and related documents on request. The intention is to put devolved nonministerial departments in the same position as UK departments. The amendment therefore changes the Scottish ministers to, I quote, an office holder in the Scottish administration, unquote. The Scottish administration includes the Scottish Government, so there is no longer a need for a separate reference to the Scottish ministers. The Scottish Housing Regulator and Food Standards Scotland are within the Scottish administration as well. The purpose of this amendment is also to ensure that future devolved departments, such as a Scottish Health and Safety Department, are covered in the provision, so I commend the amendment to the committee. Amendment 13 removes the reference in section 26 subsection 5 to the sheriff having to look to provision made in an act of sederant made under the bill when considering redacting sensitive or other material in a determination at the conclusion of a fatal accident inquiry. The Lord President has recently issued guidance on redaction of judicial decisions generally, including FEI determinations. The amendment is consistent with the principle that redaction is a matter for judicial discretion and guidance. Sheriffs will therefore continue to use their discretion in relation to redacting determinations guided by the framework provided by the Lord President. Amendment 14 ensures that the Lord Advocate and participants in the inquiry will receive full unredacted copies of the sheriff's determination at the conclusion of an inquiry. The reason for drawing a distinction in terms of different recipients is that the persons who may receive unredacted copies of determinations are either participants in the inquiry or public authorities, including Governments and the Health and Safety Executive. By contrast, the sheriff will be able to exercise discretion using the guidance from the Lord President when sending to a person to whom a recommendation has been addressed to ensure that their copy contains all the material relevant to them, whilst omitting sensitive material that they do not need to see, for example, affecting children or issues of national security. Amendment 12. Clarification Minister, on the purpose of the amendment, also being to ensure that your future devolved departments such as health and safety are covered in this provision. Is this how these kind of issues are normally dealt with before, in advance of any possibility of that happening? In this case, it provides the ability that any future devolved departments such as the Scottish Health and Safety Department are covered in this provision. It is to avoid unnecessarily having to come back to amend the legislation, so it is a practical measure. There is no particular agenda underlying it if that is the concern of Margaret Mitchell, so it is really just to allow some flexibility and avoid need to come back and amend legislation at future date. I was just trying to clarify if at present they are dealt with as and when the eventuality arises. I believe that that is normal, but I also think that this is a practical measure to avoid having to come back to amend legislation retrospectively. I do not have any suspicious agenda here. I think that was your winding up, Minister. Questions on amendment 12, we agreed to. Are we all agreed? Are you agreed, Margaret? Me as well. There you are. That is a semi-victory. I have read 13 of the name of the minister. I have already made amendment 12. Minister to move formally. Questions on amendment 13, we agreed to. Are we all agreed? Call amendment 14, the name of the minister. I have already made amendment 12. Minister to move formally. Questions on amendment 14, we agreed to. Are we all agreed? The questions at section 26, we agreed to. Are we all agreed? Call amendment 15, the name of the minister group with amendments 16, 17, 31 and 32. Minister pleased to move amendment 15 and speak to the other amendments in the group. Thank you, convener. This group of amendments is intended to clarify how the process of dealing with responses to sheriff's recommendations will be dealt with by the Scottish Courts and Tribunal Service. In its stage 1 report, the committee welcomed the proposals in the bill to require sheriff's determinations to be published and to require parties involved in the inquiry to whom a recommendation is addressed to respond to the recommendations. The committee considered that this struck the correct balance in seeking compliance with recommendations. The Scottish Government believes that those proposals will have the effect of ensuring that sheriff's recommendations are respected and that the whole process becomes more transparent. There may, however, sometimes be good justified reasons why part or all of our response should not be published. Amendment 15 makes it clear that it will be possible for the whole of our response to a sheriff's recommendation to be withheld from publication and not just part. It is expected that requests for the withholding of all of the responses will be very rare, but the party may have good reasons for doing so, such as commercial confidentiality or the protection of vulnerable persons. Amendment 17 will ensure that the SCTS website will make it very clear whether all or part of our response has been published. If part has been withheld, then a note will explain that fact and if, unusually, the whole of our response has been withheld, an appropriate note will signify that fact. Under the new subsection 7, notice will be given if no response is received. While SCTS may withhold part of a response for data protection or other reasons without a request being made to that effect, it will only withhold all of our response if a request to that effect is received. The final decision will of course always be with Scottish Courts and Tribunal service, who have experience of redacting judicial opinions under formal guidance issued by the Lord President. The experience of the equivalent procedure in England and Wales is that responses have been received in 100 per cent of cases and there have thus far been no representations for part or all of our response to be withheld. Parties seem anxious to demonstrate compliance with any recommendation directed towards them, and there is no reason to suppose that the response rates and reaction in Scotland will be any different to that experience in England and Wales. The Crown Office has previously indicated that there is no evidence that parties fail to implement sheriff's recommendations and, in many cases, remedial action has already been taken by the time when FEI is actually held, so I move amendment 15. I will take you over to wind up minister. Questions amendment 15, be agreed to, are we all aggrieved? I move amendment 16. The name of the minister has already been debated. Amendment 15, minister to move formally. I move amendment 16. I move amendment 17. I move amendment 17. The name of the minister has already been agreed to and I move amendment 15. Amendment 18 has been agreed to. Amendment 18 has been agreed to and a group in its own minister to move and speak to that It is an essential aspect of the Scottish Government's policy that fatal accident enquiries should remain inquisitorial and not adversarial in nature. By endorsing the general principles of the bill, the Justice Committee has endorsed this particular principle. Section 6, subsection 3 of the fatal accidents and sudden deaths inquiry Scotland Act 1976, protects the inquisitorial principle by providing that the determination of the sheriff is not admissible in evidence and cannot be found in any future judicial proceedings of whatever nature arising out of the death or out of any accident from which the death resulted. That provision is re-enacted in section 25, subsection 6 of the bill. The rationale for this is that the sheriff should not be inhibited from explicitly or implicitly criticising a party who is involved in the death since the function of the determination is to record the result of the examination of all the circumstances of the death and to permit the sheriff to make recommendations as to how deaths in similar circumstances may be avoided in future. Equally, however, it is reiterated that the FEI process is not designed to be a foundation for subsequent civil litigation. The bill contains expressed provision for the sheriff to make recommendations in their determinations at the conclusion of FEIs, a new requirement for participants to whom recommendations are addressed to respond and a statutory regime for the collation and publication of responses to recommendations. An interested person will in future be able to find on the SETS website both the sheriff's determination and responses to the recommendations made. The question then arises as to the admissibility status of the recommendations themselves. The Scottish Government is concerned that if a recipient of recommendations were to engage with recommendations directed to them in good faith and offer a full and open response explicitly or implicitly accepting criticism, then pursuers' agents might seek to find on the response as the basis for civil action. That could have the effect of inhibiting recipients of responses from responding fully or openly at all, and they might feel having taken legal or communications advice that a note on the SETS website stating that they have not responded is preferable to and lesser risk perhaps than a response that could invite civil proceedings or at least hamper prospects of a defence. Responses to the sheriff's recommendations should therefore be inadmissible in other judicial proceedings, and we strongly believe that this will help to foster a culture of respondents making a virtue of having constructively addressed sheriff's recommendations. I move amendment 18 on my name. I have no indication, so I take it that you don't want to. Why not, minister? Questions on amendment 18 be agreed to or we all agreed. Questions on section 27 be agreed to or we all agreed. Call of amendment 61, the name of Patricia Ferguson and a group on its own. Patricia, please to move and speak to that amendment. Thank you again, convener. Amendment 61 requires that a report is prepared annually by ministers of recommendations made by sheriffs in relation to FAIs. The report would contain information regarding the number of recommendations made, the number requiring a response and the number of responses received. The amendment also requires such a report to be laid before Parliament. As you know, my own bill went further than is now being proposed, but I am conscious that my preferred way of working might have resulted in such recommendations becoming the subject of appeals, designed to delay the introduction of a recommendation, which clearly was not my intention. It is to be hoped that that alternative will reinforce the importance of such recommendations by making them the subject of such a report and that that importance is emphasised by ensuring that they are laid before Parliament and published. I am very grateful to the minister and his team again for their co-operation in making this particular element of the report possible. I move the amendment to my name. Anyone else wish to comment? No, except well done again, Ms Ferguson. There is hope for us all on the back benches. Minister. I am aware of concerns expressed by the committee and others about ensuring the recommendations made by sheriffs at the conclusion of fatal accident inquiries are respected. Again, I want to thank Patricia Ferguson for working on this so hard. The view of the Crown Office and the Health and Safety Executive is, however, that where sheriffs make recommendations as to how deaths and circumstances similar to those of the death, which is the subject of the inquiry that can be prevented, are passed on to the relevant parties and regulatory and other authorities are taken very seriously. They have commented that remedial action has often been taken by the time when the FEI is actually held. That should not, however, be taken as a reason for complacency. The bill now formally obliges Scottish Courts and Tribunals Service to give a copy of a determination to each person to whom a recommendation is addressed and to any other person who the sheriff considers has an interest in a recommendation. That would obviously include any regulatory or Government body at Scottish or UK level. In the committee's stage 1 report on the bill, the committee stated that it welcomed the proposal in the bill to require sheriff's determination to be published and to require parties involved in the inquiry to which a recommendation is addressed to respond to those recommendations. It was also pointed out that it considered that the proposal struck the correct balance between improving compliance with the recommendations and noted the view of witnesses that there could be difficulties in placing a duty on a particular body to monitor the implementation of sheriff's recommendations and consider the proposals in the bill to be sufficient. I believe that the proposals in the bill for requiring responses to sheriff's recommendations will foster compliance based on the evidence that I outlined in England and Wales where there has been a high degree of compliance. Publication of the response or notice that no response was received will make the system more transparent. It mirrors the procedure used under the system of coronas inquests in the south. As I have said, however, we should not be complacent in this regard and this amendment in the name of Patricia Ferguson places a duty on the Scottish ministers to publish an annual report of responses to recommendations made in sheriff's determinations to be laid before Parliament. The report will indicate the number of such responses received alongside the number of inquiries and the number of recommendations requiring response made during a reporting year. It will also indicate the number of failures to respond. The Ministry of Justice, as I said, reports that there has been a 100 per cent response rate for the similar rules in effect for coronas inquests in England and Wales. There is no reason to believe that a similar rate of response would not be achieved under FEI legislation in Scotland. Persons to whom recommendations are addressed are usually only too anxious to demonstrate their compliance and recommendations are only made in one third of FEI determinations, an average of 20 per year. Reporting the number of responses and non-responses should not be onerous or expensive indeed. Having a record of non-responses in an annual report will allow trends to be identified over time by interested bodies. I agree with the principle of Patricia Ferguson's proposal. I would again like to thank Patricia Ferguson for her work in this area and I hope that the committee will support this amendment. Patricia, to wind up, please. I am happy to read that. You are pressing it. I am. The question is that amendment 61 be agreed to. Are we all agreed? Yes. The question is that section 28 be agreed to. Are we all agreed? The question is that section 29 be agreed to. Are we all agreed? Call of amendment 19, the name of the minister already debated with amendment 10. Minister to move formally. Formally moved. The question is that amendment 19 be agreed to. Are we all agreed? Call of amendment 20, the name of the minister already debated with amendment 10. Minister to move formally. Formally moved. The question is that amendment 20 be agreed to. Are we all agreed? Call of amendment 21, in the name of the minister group with amendments 24 to 30. Minister, please, to move amendment 21 and speak to the other amendments in the group. Efallai gwnewid ar hyn o ddangos o'r ddweud o cael y prosesiaethol, ac mae'r ddechrau treflegol neu'r ddechrau a'r ddechrau'r ddangos o'r ddweud o'r ddweud, dwi fawr ddod y byddwch yn ddau cyfosir o daith. yn ti'r ddweud, mae'r ddweud o'r ddweud o'r ddweud o'r ddweud, dwi ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud o'r ddweud, dda'i gwneud beth i'n fwy Shwydd would have been material way different. Lord Cullen did, however, expressed the view that it would be rare for new evidence to render so much of the original determination unsafe that a completely fresh inquiry would be necessary. The Scottish Government agrees that it will be rare for a new inquiry to be necessary, and if the new evidence is brought forward which may be'ewr in itself, the norm will be this original inquiry will be reopend and continued. I would like to clarify that the provisions are not meant to assist party nivel within that pathway but they will be a fail to tell you exactly why parties who are dissatisfied with the handling or outcome of the original FEI, the appropriate remedy in such a case would be a judicial review, were there any legal flaw in decision-making. Amendment 21 requires the Lord Advocate's opinion on whether the form of further proceedings should be a reopened or fresh inquiry to be included on the notice to the sheriff under section 30, subsection 1, that further inquiry proceedings are to be held. It is entirely appropriate that the view of the Lord Advocate should be known to the sheriff who is to take the final decision on whether an inquiry is to be reopened or a fresh inquiry held. It is also appropriate that the Lord Advocate should express such a view since he or she has taken the original decision that the new evidence merits further judicial consideration. Amendment 24 requires that the sheriff to hold a hearing when a notice is given under section 30, subsection 1, that further inquiry proceedings are to be held. This hearing will allow the sheriff to hear representations of the procurative fiscal and the participants in the inquiry in order to permit the sheriff to reach an informed decision about the form that the inquiry is to take. The purpose of this amendment is to meet the rationale behind Lord Cullen's recommendation to allow further proceedings. In his review, Lord Cullen said that it should be further sheriff to whom the application is presented after hearing the procurative fiscal and the interested parties to decide which form of proceedings is appropriate in the particular case. Lord Cullen did go on to say, however, that he favoured in general having reopened inquiries since a rehearing of the whole evidence may be unnecessary, though he did concede that there may be cases where a fresh inquiry is necessary. Amendment 26 will oblige the sheriff to consider whether there is a public interest in a fresh inquiry being held rather than reopening the original inquiry. This will be assessed on the basis of the circumstances of the particular case. There are clearly potentially substantial resource and cost issues to holding an entirely fresh inquiry and it is right that the sheriff should have regard to the public interest in deciding whether the original inquiry should be continued or a new inquiry be held. Amendment 25 is a drafting amendment that provides consistency in the provisions of the bill and amendments 27 to 30 are consequential on amendment 24. I move amendment 21, in my name. I take it that I want to wind up. Minister, the question is that amendment 21 be agreed to or agreed. Call amendments 22, 23, 24, 25 and 26, all in the name of the minister and all previous debate. I invite the Minister to move the amendments on block. Does any member object to a single question when putting on amendments 2226? If the question is that amendments 22, 26 are agreed to are we all agreed. Questions at section 30 be agreed to are we all agreed. Call amendment 27. The name of the minister already breathed an amendment 24 Minister to move formally. Form Most. Questions at amendment 27 be agreed to are we all agreed. Call amendment 28. The name of the minister already breathed an amendment 21 minister to move formally. Form among most. Ie ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim i ddim amwethaf ni allu? ALLAH柵ba'u piern am'endeil eithaethau sprwps trosod三. Q1, 3A, Q5, 3A, Q1, 3A, Q reason 3, Q1, 3A, Q5, 3A, Q6,等d, Q4 three, Q1, 3, Q1, 3 A, Q5, 3A, Q3 ter, Q4 three, Q5, 4, Q1, A, A, Q4, 4, Q1, 3, Q3 three, Q4 three, Q5, 4, Q5, 3A, Q1 2, Q6, 3A, Q1, 2, Q4 three? ASQ ydw'ch credu hynny yn ddegwr i prou aelod m enhanceardgof tier, iawn hanref Lywodraeth beithwun i ddeithasig llawer ar gyfer y Сfodiliaeth. Felly, mae'n pethau i ddiddordeb, yn gyfleu gwych. Felly, mwy oedd yn chweithio gyd yn eu cyflwnol, ond mae'n gwaith iawn. Felly, byddwn i ddiddordeb. Felly, mae'n gweithio gyd yn ei gweithio gyd ddifwydd i gyd, mae'n gweithio gyd yn ei wneud gyd. Mw'n gweithio gyd, mae'n gweithio gyd i'w gweithio. Mae ffaith i ddylch i'r ddefnyddio Gwyrraeth i'r torqueㄱwyl yn 1976 1976 yn fwy roeddaeg cyflwyfodaeth gwaith iawn, ac ti'n hacrwy gwyllus. Focall, there are a number of cross references to the 1976 act sped across the Scottish statute book, for example, in the Scottish Public Services Ombin's Act 2002. This grouping of amendments is technical and comprises purely consequential amendments to existing legislation to replace references to the 1976 act with references to the bill. Schedule 2 to the bill would be expanded from three paragraphs of consequential modifications to more than ten such paragraphs. Amendments 37, 40, 41, 47 and 48 repeal redundant provisions which themselves had amended the 1976 act. Where related amendments are required to be made to UK extent statutes in the law of England and Wales and Northern Ireland, these will be taken forward in the order under section 104 of the Scotland act 1998. I do not move amendment 33, if it's okay with the convener, which would repeal section 38 of the administration of justice Scotland act in 1933. After further researches by the bill team, it transpires that this redundant section has already been repealed and is therefore no need for amendment 33. I move amendment 34, convener. We're not at that yet, so I'm just going to go through this again. You're not moving amendment 33, which we're all quite happy about. I take repeal repeals, what? Bear with me a second, there's a new con. Because I was made to move it, you've got to seek to withdraw it. I may seek to withdraw amendment 33. I think we're all feeling charming today about it and we say yes, so that's it gone. Amendment 33 is gone. I call amendments 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 47, 48, 49, 50 and 51, all in the name of the minister and all previously debated, and now minister I ask you to move amendments 34 to 51 on block. Moved on block for me. Does any member object to a single person, a single question being put on these amendments? I think it's time for a coffee. The question is that amendments 34 to 51 are agreed. Are we all agreed? We're coming to the end. I'm glad to know that the finishing post is in sight. The question is that schedule 2 be agreed to. Are we all agreed? Questions at sections 38 to 41 be agreed to. Are we all agreed? The question is that the long title be agreed to. Are we all agreed? That ends stage 2 consideration of the bill and I thank the minister and his officials. Can I say to the committee an amended reprint of the bill will be published overnight? I know you'll be glad about that, so you can get busy with any stage 3 amendments to be lodged with the legislation team. I'm going to give us a seven minute break, minister, because you're back again. Yes, I need seven. Thank you very much. Item 3, it's an evidence session relation to the County Justice Scotland bill. Last week, we requested a written response to the minister on how two related policy developments might interact with measures in the bill. The Scottish Government's current consultation on whether the presumption against short periods of imprisonment should be extended or whether a more radical review of the use of short-term imprisonment is required and the final decision to be taken on the future configuration of women's prisons arising from the question of women offenders 2012 report. Thank you minister for providing a response at short notice and I know you're here to answer questions on this response. This is an evidence session. I welcome the Scottish Government officials and the Bruce deputy director of community justice division, Arlene Stewart, head of community justice operational unit and Caroline O'Malley, legal directorate for legal services and members' questions straight into it. Any questions? I mean, I think they've battered into submission to the last session. Alison Stewart, your stumps. Let's have you going on. Thank you very much, convener. As convener said, we're particularly interested in interplay between the community justice bill provisions and two other major pieces of possible reform. One round about the women's prison estate and the other about the possibility—much welcome by myself at least—of extending a presumption against short-term sentences. The committee is seeking some assurance that the community justice bill isn't running ahead of itself if these other reforms are happening. Is it fit for purpose to bring about the kind of radical change that is also proposed with these other things? I believe that it is. If it would be helpful to convener, I will just set out some reasons why I believe that's the case and hopefully that will reassure Alison McInnes and others. No, it's just that obviously we've set out before I'll not go over again the vision for fair justice in Scotland, but that vision reflects the values of a modern progressive nation, one that we all want to achieve. There's a stronger emphasis on robust community sentences that are focused on actively addressing the underlying causes of offending behaviour. The bill provides the basis for the new model for community justice in Scotland, establishing a new body community justice in Scotland that places specific duties on statutory partners and introduces a national strategy and performance framework for community justice in Scotland. The new national framework for outcomes performance improvement will enable, we believe, the consistent evaluation of progress and delivering community justice outcomes, but specifically a new model has been designed to be sufficiently flexible to respond to new policy developments and opportunities at both a local and national level. I'm confident, for example, should the use of community sentences increase in the future, perhaps as a result of the consultation on presumption against short sentences or other measures, then a new model could support that. We have, as I've said before, a consistently high imprisonment rate. The Government is determined to change that by reducing use of custody and clearly we do have a desire to reduce in particular the use of short-term prison sentences that are largely ineffective and do not achieve reduction in re-offending. We are of the view that the presumption against short sentences of three months or less has had limited impact so far, and that's why the consultation has been taken forward on proposals to extend the presumption. However, the central message is on that front that we believe that the model that has been developed is sufficiently flexible, convener, that it can be adjusted to take account of any policy direction that we go down in this regard. Obviously, if there are resource implications, they would be reflected on, but the structure is sufficient to cope with that is the key issue. Do you want to talk about the women's prison estate at this moment in time, convener, in response to Alison McInnes? I think what we were looking at is when we look at your response, and I think if you add the figures together, 29 per cent, 37 per cent for the not to three months and three months to six months, that's six to six per cent, six months or less is an awful lot. Is the money going out of the point we're making, is the money going to follow people if you go down the route, which I think many of us would welcome, is the money going to follow into community justice if you're saving money in the prison service because you say here in paragraph 3 of your letter, that shift is already being seen with resources transfer from the SPS to invest community-based services. Well, you know, what much is that? That's really the question, it's over the well, but is the money going to follow the change? I will maybe bring in Andy Booth on this point, but initially if I would just say that clearly any implications of any subsequent decision that we take with regard to extending the presumption against short sentences would look quite closely at the resource implications, but the key thing is that the bill itself will deliver the structures that will apply in both scenarios, whether we do extend the presumption against short sentences or do not, the structures can be the same, but the resource implications I appreciate, and I'm happy to find it. But what precedent, Ian? I think that's what we maybe want to know about, if that shifts already seen resources move. Yeah, I appreciate that point, and I'll make me, if I may, convener, with your consent, bring in Andy Booth on this particular point. I think the paragraph you referred to convener specifically refers to the money that's transferred from SPS to community for the women's based services, so this was the 1.5 million that the Scottish Government had originally invested and that we've now made sustainable as a result of a permanent transfer from SPS to community, but I think that's a statement of intent. I think, as the Minister said, almost implicit in these developments is a view that we want to see that shift from custody to community. It's clear we're about to enter a spending review period, and it makes it difficult to be very explicit at this stage about it, but I think we can absolutely recognise the principles that yourself and the rest of the committee are saying around that shift in resource to support the wider vision. I mean, that wider provision that we need, thank you, convener, of consistent and effective community justice services will need to be developed quite significantly. Can you elaborate a bit more on how community justice Scotland would ensure that there was that proper provision? Well, one thing to point out, and the diagram that was attached in Annex to the letter, my letter to the committee convener, was set out that obviously the range of bodies that are involved in diagram 1 with delivery of community justice but also highlighted that the relationship between community justice Scotland and the justice board itself and indeed between the justice board and ministers, so we want to put non-custodial solutions on the same party of esteem with custodial solutions. Having community justice Scotland represented on the justice board where such matters are routinely discussed in terms of the balance of resourcing and the implications of policy as it develops for other functions of the justice system is a good forum for ensuring that any resource implications are addressed and ministers are informed thoroughly of the steps that are needed to be taken to ensure that the adequate resources is provided to deliver on the policy intention here. I hope that that general diagram clarifies the structures and the relationships between the different bodies that are involved in delivery of community justice under the model that is envisaged, but clearly also states quite transparently that community justice Scotland will have a role in the justice board where such matters are already discussed and indeed discussions have been taken forward about the women's custodial estate in that context already and that provides a balancing in terms of looking at the issues and implications for community sentencing options and the resourcing of those in the appropriate forum and to allow a good engagement on the issues that arise. One of the drivers for these changes was that I think the audit committee said that there was very cluttered landscape here. I think that there is a real risk of it being even further cluttered. We have had some supplementary written evidence from the convener of the community justice authority. We remain very concerned that issues around authority, responsibility, accountability and leadership remain unresolved. The committee raised concerns about the potential for improvement, the opportunity for change and the hope that better outcomes will follow. Do you not think that we need to be more direct than that and that we need to have more clear assurances on that? I can accept those points that Alison McInnes raised. I know her genuine interest in trying to assure that the quality of services that is delivered is enhanced, if possible, rather than just maintained. I take them in the spirit of their meant. In Annex B, the diagram 2 to the letter tries to make it clear in setting that out how there would be an improvement process in place. I am not a huge fan of management diagrams, but in this case it helps. The triangle on the right of the diagram makes clear the process where targeted support and improvement activities would be provided by Community Justice Scotland. Two local agencies involved at delivering Community Justice Scotland in each of the 32 areas. Recommendations might arise to ministers and to local government leaders. However, as we go up through the triangle that permitted the involvement of multi-agency inspection, which is not a small measure, which would look in greater detail at any perceived failings in delivery of Community Justice at its local level, ultimately potentially leading to a rescue task force being deployed to ensure that the potential escalation action means. Indeed, there would be some teeth to Community Justice Scotland, as the way of putting it. Yes, I genuinely believe that there are opportunities and we do hope that there will be improvements, but we also have behind us in the proposed model the opportunity for multi-agency inspection and potentially a rescue task group to be deployed to ensure that the standard of services at a local level is brought up to the appropriate standard. I think that that is an important point that Alison McInnes raises. I hope that that clarifies that this is not a woolly process, but it is something that does have some teeth to it. However, we all want to work in partnership with the local partners where we can, and that is why it is important not to jump in with the tacky debuts at the start, but to try and work with the local partners to deliver targeted and support and improvement, to help them to deliver good services at a local level if they can do so, but ultimately, if they are not able to do so, we can intervene in a more appropriate way. Can you remind me, minister, where this business of rescue task force and beefing up possibly—I enter standard tacky debuts, but having tacky debuts at the sign ready if you need them? How will this not part of the primary legislation? Where is this going to be? Through the process of secondary legislation, we were supposed to deploy this, and the Parliament will have the opportunity to consider the detail of that in due course, convener. I guess that we were trying to address a concern that there was among members that, perhaps at this stage, where we are really dealing with enabling powers, that they were not providing sufficient detail about our intent. I hope that that clarifies what we would intend to go. That is right. Roderick, followed by Margaret, followed by John, please. Good morning, minister. Can you clarify for me, if you can, to what extent the national statutory and performance framework will be a living document that will reflect changes in penal policy, or is it going to be something a bit more stuck in and not flexible? The strategy is going to be a hugely important document that will, I hope, in line with other measures to provide a kind of party of esteem for non-custodial sentences and community-based solutions, that a strategy with some buy-in and power from stakeholders as well as needs to be developed. The national strategy and performance framework have been discussed at previous sessions. There are some draft outcomes that are being looked at in terms of how they can be deployed at the local level and being piloted, so that that is under development at this moment in terms of informing the performance framework that would be published. Those will be documents that will be published as soon as practicable after the bill has been passed. I cannot, at this moment in time, hasten to stress trying to subvert that process and come up with suggestions as to exactly what will be in the strategy, but the strategy will be an important document that will provide clarity about what the Government is trying to do and indeed stakeholders together are trying to do to deliver robust and effective community sentences to reduce re-offending. I do not know whether that is quite what the member is looking for. Is it flexible to cope with changes that may come in relation to short sentences? Indeed, it would not be a static document that would sit on a shelf forever and not be reflective of changes in policy as we go forward. It can be reviewed and obviously brought up to date and kept up to date with best practice as well as we develop our knowledge of best practice. If it may help convener to help Mr Campbell with your consent to bring Arlene Stewart at this point, because I know that it is something that Arlene has been looking at. In terms of the national strategy and what we have been doing, we have formed a steering group that has representatives from different partners and stakeholders who would have an interest in this. Social Work Scotland, the third sector, SPS Police Scotland and others. They are doing exactly that. They are steering the development of the national strategy at present. The bill allows for the national strategy to be developed, and it has to be published within a year of the bill being enacted. However, it also allows for the strategy to be refreshed to allow for exactly that changes in policy, changes in context and so on. Community justice Scotland would have a role in effectively monitoring the efficacy of the strategy. Is the strategy still fit for purpose? It would be able to make recommendations to ministers as and when required to do so. However, back to the development. We have come up with a broad range of themes. There are lots of different working groups looking at this. You can imagine the development of any national strategy. Some of those are around communities, because this is obviously a community-based model, so it is about empowering communities. There is another one around ensuring the effective interventions, which goes back to some of the earlier discussion that we have had already this morning. Taking it forward, we have started the first of four regional events to really engage with people on the ground about what they need to be in this national strategy to make a difference. We had the first one in Aberdeen last week. We have the next one that is coming up this week in Glasgow, and then we go on to Dumfries and the Finlay in Edinburgh. It is really important that those people who will have to be making reference to the strategy when they produce their plans have the most input to that and developing the national strategy going forward. There will then, with a strategy, be the implementation plan, which will be coming forward and then working through that as well. Thank you, minister, for the diagram. I think that that is helpful, even if it does present more questions. When the bill was first mutated when we had the informal briefing, it was very much stated that Justice Scotland and the local partnerships, community justice, local authority ones, would be a partnership. However, it does appear from the diagram, the new model for community justice, that community planning partnership with the Scotland community justice from some things in your letter. They would be very much taking the lead while we wanted somebody to take the lead, but also ensuring compliance. We are looking at national strategy, the detail of which we do not know at present. In many ways, what we are being asked to do is look and see how it works, which perhaps is not ideal. Could you comment particularly on some of the concerns raised that there did not seem to be any emphasis on the preventative measures, the early intervention and particularly the third sector involvement, which, more than just being consulted on, perhaps should form more of a partner in delivering some of those services and objectives? Certainly, if I can reiterate points, I think that I have made before, but just to put them on the record, in case I have not done so formally in Parliament, that we do recognise the very important role of the third sector, not just in terms of engagement and consultation, but because they are key delivery partners in delivering community justice, about a third of the activity that I have put on record before is delivered to the third sector. Clearly, they have an important role to play. I take the point that Margaret Mitchell makes about the perhaps the difference, the different view that you can take about the balance between centre and local partners, depending on which version of evidence that we are looking at. Just to reiterate, we very much see that this is being touched upon in relation to the response that I gave to Alison McInnes. We do see that the necessity to have the ability to step in and sort out problems if they are presented and they cannot be resolved by local partners, but we do want to work with local partners to support them to deliver change if that is required. In the fullness of time, delivery against outcomes under the performance framework is not to an acceptable standard. We have to take steps to make sure that that is addressed, starting to do that initially in partnership with the local partners and providing the support and resources that they need to be able to bring it up to the appropriate standard, but if that is not possible thereafter, that is where perhaps there is more of an interventionist role for community justice Scotland, but that would be informed by dialogue with the local partners as well, of course. However, I think that it is important to stress that we are trying to empower local partners as much as we can within the framework that we have set out so that there is flexibility. We have not been directive as to who should be a lead body, partly because we believe that all parties at local levels should have responsibility for delivering outcomes, but it also allows the flexibility in the drafting of the bill for local partners to determine themselves as to how they work together, how they perhaps work across local authority boundaries as well with neighbouring authorities, and there is flexibility in terms of commissioning as well depending on the desired approach that needs to be taken. We have a mixture of structures that provide some solidity but also some flexibility in the system. It is important to maintain a degree of accountability but also local flexibility to suit circumstances as well. I appreciate that the diagrams are never perfect. It is never easy to come up with one that summarises the position neatly, but I would not want to imply that the relationship is one that is in any way directed from above, but we have to have the ability to step in and support where necessary and, indeed, if need be, if there are failings in terms of outcomes delivery to be able to put in place either a multi-agency inspection or a rescue task group if that is necessary. I think that we are striking the right balance between local and national and providing some degree of certainty to the point that Alison McInnes is making, providing some teeth if that is necessary, but also only deploying that when it is absolutely necessary rather than at the very beginning. In terms of striking that balance, if the penal reform goes ahead and the presumption against a sentence of not just three months now but six months comes in to force, clearly those community justice partners are going to have quite a substantial increase in work loads. Are you confident that they are still going to have the flexibility and resources to prioritise locally and to look at the prevention and early intervention, which we all agreed was pretty germane to the whole proposal? I think that there was a sentiment that we were looking at early intervention focused in this bill. We can obviously say more about this in due course, but in terms of the preventative agenda, I know this is the point that Mr Finnie raised as well when I gave evidence originally on the stage 1 process about the definition of community justice and what is in that. I stress that there are a range of preventative strategies that the Government already has in place that complement what we are doing in community justice. As I said at the previous committee session, there are frameworks in place for early years. There is a draft national improvement framework for Scottish education, as well as children and young people's Scotland act. We are all dealing with the primary prevention at the earliest stage, trying to prevent people committing crimes in the first place and giving them the support that they need to have an equal chance in life across society. We have a group of strategies that might come under secondary prevention, as well as community services, community justice and Scotland bill that fit in with them. There is a whole range of other strategies that I will not go through in course, but it is the point to be made that this is dealing with reducing re-offending. There are existing strategies that support the targeting of reducing offending in the first place and supporting young people in particular to get the best start in life and to have the reduced chance of committing an offence. However, we are looking, as we go forward in the bill, about the definition of community justice and trying to reflect the sentiment of the committee and wider stakeholders in reflecting prevention. However, I just want to put that on record. This is not to be seen in isolation. Community justice bill sits alongside a number of very well-prepared and highly regarded strategies that deliver preventative measures at an earlier stage perhaps in someone's life. That is about trying to reduce the risk that someone will re-offend once they have offended in the first place. However, we take on board the point about prevention and we will try to do what we can to reflect that in due course. I think that it is probably an hour to think about early intervention. It was narrowing it down more to, because that is very broad. I mean that is very broad, early intervention starts in the pram. However, it is more like diversions from prosecution, not just people into the system in the first place, so it then kicks in. So it is probably narrowing it down to that. I accept that diversion from prosecution can be very helpful indeed in the context of the Offensive Behaviour Act. Of course, that is something that we are taking for ourselves to try and reduce the need to criminalise someone in the first place. John Lennon Thank you, minister, for your response to the letter. First of all, I think that there will be tensions in the national, local and certain agencies in the third sector, and positively dealt with them. I do not think that they should create a difficulty for us. You alluded to something in your response, minister, which is about the proposals for strengthening the presumption against what ineffective short instances are for female offenders. That is the transfer of resources in the Scottish Police Service, the Scottish Pigiparm Prison Service, quote, to invest in community-based services and work by the SPS to transform its role. That is with the reference to the through-care and integration of people back into the community. I am trying to understand what—there is an example, surely—we can learn about, as an on-going basis, about the transfer of resources from the institution to the community. Can you explain, because your work there and the SPS to transform its role, maybe its role does not extend? I am personally supportive of the community, but should it not be a facilitator rather than necessarily a deliverer, what the relationships would be with the third sector who might see that as their traditional ground, and where among all that would community justice Scotland sit? I accept the point that Mr Finnie has made that we should not be prescriptive about the role of the SPS in respect, but I think that what we are seeing already in a number of fronts, and I have seen evidence this myself, is that the SPS is trying to do what they can to get more engaged in ensuring appropriate employment for those with persons of the conviction when they leave the prison system to try to reduce their reoffending. We said that they would be much more proactive in education in ensuring that they are working with partners outside the prison service to ensure that there is appropriate housing for people when they come out, and those are all important measures. We would not want to be in a situation where we cut SPS loose from that very important work, but they are increasingly getting involved, and I think very positively to try to help to provide as much certainty for those who unfortunately have to spend time in the Scottish prison estate that they have a viable future ahead of them, and that they will be supported to resume a normalised way of life and reduce the risk of reoffending. That is my balance, but I take the point that if there are opportunities for those who do not involve SPS, that is okay too, and a third sector might be a more appropriate partner to work with in those situations. I do not think that we should be prescriptive and I take the point that Mr Finnie raises, but we are trying to reflect on the fact that SPS is trying to become much more proactive in supporting the re-engagement in society of those who are coming through the prison system and making sure that they have the support that they need to reduce their risk of reoffending. I do not know whether Andy Bruce perhaps would want to comment further if that may be helpful to Mr Finnie on some examples. Perhaps we should expand on that through-care support officer role. Perhaps the way to look at that is that we absolutely see that transition from custody to community really important and people making that transition would really benefit from someone alongside them to provide advocacy support as they make that return to the community. I think that the role of the TSO can be sat alongside the role of the mentors that we have supported through the PSPs, which are primarily third sector. The way to perhaps look at it is that you would want to make sure that, for that person, you will find the best support for them. If, for example, they have developed a really good relationship with their prison officer, there is no reason for the end of the prison sentence to be the end of that if that suits them. Equally, if the last thing they want is to continue that relationship because of that experience, there should be a mixed economy available for the deprived sport. That situation is probably more appropriate that they look to a mentor from the third sector. The approach that we are trying to support is that we are looking at the particular needs of that person leaving prison and what would be the best support package that we can put alongside them. It should be third sector support if that is best for them. Equally, if it makes sense for continued support from a prison officer, the system should be able to support that as well. How does that actually work in a balance sheet? Someone is going to hold that resource. I reassured greatly by what you said that it is an individual tailored support. Where is the funding for that coming? If Jimmie or Mary want the prison officer or don't want the prison officer, presumably there are resources there that the prison officer could do it, or is that a resource? Is that going to be something that is going to be dealt with, for instance, by Community Justice Scotland? Would they be expressing a view? Obviously, we are trying to look at how we can formally reflect the role of third sector in the bill at that point. I think that there is an extremely important delivery relationship between all the statutory partners in the third sector in that respect. As the funding, we have got the transitional period that we are looking at as well, where there is going to be an on-going examination of the resourcing that is required. We are obviously working on some assumptions at the moment, and we have undertaken that. We are reflecting any kind of particular pressures that arise in that process, but in the longer term, I accept that we need to think about how we work with the third sector, the commissioning arrangements. Obviously, we have outlined where we are trying to give more clarity and more stability to the third sector partners as well. That is a slightly separate issue. I appreciate it from the one that Mr Finnie is making, but we can also look at how funding mechanisms work in terms of whether there is a person-centred approach, then we have to be able to reflect that in terms of how we resource that activity. That is something that we can maybe come back to the committee with some further information, further thinking on that, if that would be helpful. I am not batting for any particular side there. I think that it is whatever appropriate, but it will not be as simple as reduced admissions to position means that there will still need to be a certain cohort of prison staff, regardless of the number that is within. Indeed, for health and safety reasons, there is a whole raft of other cases. Can you just remind us a case? I cannot remember. What is the cost of some of the per annum in prison just now? It is very significant. I know that it varies. I have a figure in my head that is probably incorrect, so I probably should have revert time. Do you appreciate it in case it is? I appreciate what you say about the staffing levels, but there is much of it. The point that you are raising is that, by not having someone accustomed to you, you release resource, and that is absolutely perfect. Do we have an idea kind of ballpark figure for it? The figure that is huge comes out somewhere around £32,000 to £34,000. It can still be that. That is what it was 10 years ago, when I was getting that quoted, surely. I do not have an up-to-date figure for you. It is very helpful to know that from the public's point of view. I certainly know that we are quoting that away back and do not think that it will be static. I have a slightly higher figure in my head, but I am glad that I do not use it. What was the slightly higher figure in your head, Minister? I thought that it might be near the £40,000, but that may be incorrect. I tend to agree, minister. We can try to come back to the committee with a more accurate figure. Other than that, you have been very economical in the prison service, and everything else in life is costing more, including Saturdays. Obviously, one of the variables that we should recognise is that, Mr Finlay acknowledged, there is a fixed number of staff in the prison estate. As the number of offenders in custody actually drops particularly, we have had great success in delivery in our youth justice approach that we have fewer offenders in Pallment, for example, that the cost per prisoner increases. To be fair to Mr Bruce, it is a bit of a movable feast, but we can try and see if we can find a more accurate figure to the committee. Those are savings to be made, obviously. Indeed, absolutely. It is acknowledged. Yes, okay. Christian, followed by Margaret. Yes, on that particular point of mixed economy that Andy Bruce talked about, and we talked a lot about the third sector, but I did not say anything on your reply. It was a private sector, and almost a private sector is doing to help. Can you give us some ideas on that and make it a bit more clear? It is a mixed economy, not only on the SPS and the third sector, but on the part as well. I apologise if that is a failing in the response. I know that this is an issue that Mr Allard has raised a couple of times before, and it is a very important one. I am happy to address it if I can briefly and to give some reassurance to Mr Allard. We are doing work on trying to look at how we change the environment in terms of private sector employment of people who have convictions and be aware of the proposed changes in terms of the disclosure of spent convictions as well in terms of trying to make it easier for individuals to where it is not relevant to the job that they are going for, not necessarily to declare an old conviction that they have experienced, but we have some very good proactive employers across the UK and in Scotland that are working with the authorities in Scotland and the Scottish Prison Service to try and provide employment opportunities for individuals who leave the prison estate and make sure that they have a viable employment option. It is not just about housing, it is not just about the other issues that I discussed earlier. Employment is one of the most important way in which we can prevent people from re-offending if they have a stable job in a home to live in. It is a very good chance that they will not re-offend, so I take that point on board and we can try to address that in subsequent debate. I think that the devil finds work for idle hands and we are reminding himself that, but not that you have got idle hands in the market so far, so thank you. Well, you might not be saying that after I have asked my question because I wanted to ask you about victims, and I know that that was not part of the letter that we had sent you, but community justice is essentially about communities and justice for all, which includes victims. We did not have the offenders and there would be no victims, so there is very little mention of victims in this bill. I thank you very much for the flowchart that is very useful, but I wonder where the victims are represented within this whole bill, because, from my point of view, there does not seem to be any representation at all. I certainly respect the point that Margaret MacDougall has made, and I know of Margaret's strong interest in this area and, indeed, experience. It is not a person—I am trying to be— No, no, but I appreciate the point. It is important. As a point of address, I think, in not in the parliamentary debate so far, but external to Parliament, regrettably, in terms of these questions that were raised, and what we are looking at is an opportunity at a local level of 32 areas for engagement with representatives of victims and, indeed, wider communities as to the kinds of community sentences that perhaps might be most appropriate, so that, if we can have community sentences that not only help in reducing re-offending but also deliver some collateral benefit to the local community in the process, so that they might be targeted at a particular need, something that might be seen as being helpful to the community, and there are opportunities to do that, I think, in the structures and rather be prescriptive about what form they should take. That kind of engagement can happen at a local level, and they may form examples of good practice that could be taken forward, publicised and rolled out through the efforts of Community Justice Scotland as well. Working with local groups, whether they are representatives such as Scottish Women's Aid and other third sector organisations that work on behalf of those who have survived an abusive relationship to look at what kind of things would help at a local level through to engagement with community councils and other community groups as to what kinds of things would constitute community sentences that might provide reassurance to the community that they are meaningful and that they are not only helpful in providing a robust alternative to custody, but they also deliver something that is perceived to be of benefit to the community. That would be good, but we can try and reflect further on how we represent the interests of victims and how we take forward the bill. I take that point. Thank you very much. That concludes this evidence session. I thank you very much, Minister, for being yourself available today. Pretty well single-handed to us. We are now moving into private sessions, so I wait for the public area to be cleared. Thank you.