 I welcome everyone to the 17th meeting of the Justice Committee in 2015. Can I ask everyone to switch off mobile phones and other electronic devices as they interfere with broadcasting even when they're switched to silent? No apologies have been received. Item 1. I invite the committee to agree to consider item 5 consideration of evidence received and the inquiries and fade license and sudden deaths except for Scotland building private. Are you agreed? Thank you. Item 2. It's an evidence session on the Scottish Government amendments to the Prisoners Control and Release Scotland Bill. Those with an interest in this bill will recall the committee previously agreed to take evidence in these amendments as they will have agreed to make significant changes to the bill. That stress is an evidence session. We've got one tomorrow and then there will follow a session where we have amendments moved, so that's not happening today. I welcome to the meeting Michael Matheson, Cabinet Secretary for Justice and the Scottish Government officials, Philip Lamont, head of criminal law and sentencing unit Fraser Goff. Thank you, Parliamentary Council office. Cabinet Secretary, I understand you wish to make an opening statement. No kidding, but I'm happy just to go sit and take questions. Excellent, whilst that's you're winning, friends. Right, straight questions from members. Alison, Roderick, Elaine, that's Ann-John and then Gil and then Christian and that's just about everyone so far. Thank you. I start with Alison, then Roderick, then Elaine, then John. Thank you very much, convener. I'm grateful that you've responded to the committee's report in the way that you have, but I wonder if you can perhaps give us the thinking behind the six-month figure that you have settled upon and some more evidence as to why you picked that figure. As the committee outlined in its report, it wished to see a period of community-based supervision to be provided at the end of someone's sentence. Larger based on evidence, you heard about some of the issues around cold release and the impact of that. I gave an undertaking to the committee that I would consider that. We've brought forward amendments that will create a compulsory period of supervision within the person's sentence, the prisoner's sentence, when they're released back into community. Now, the evidence that the committee received varied from three months to a year as to what that compulsory period of supervision should actually be. There's clearly a broad spectrum of views around how long that period should be for a prisoner. I'm also very conscious of the evidence that I've received that the six to 12-week period when a prisoner is released is the period of real risk about making sure that they are reintegrated back into the community with the right services in place, with the right support, with the right connections made with various agencies and organisations. However, considering how we can achieve that, that would also be around a three-month period, but also to try and give a bit of greater scope there for those prisoners that may require a longer period of time to be supported in the community to pick up on any additional issues. Considering the evidence that you've received as a committee and considering the issues that this period is meant to address, then the six-month period was considered to be a reasonable period of time in which to address these matters. Having said that, I think that it's not just about time, it's also about the quality of that work. It's important to recognise that, even though someone will have a compulsory period of supervision for six months when they're released from prison, as a long-term prisoner, there's a significant body of work that needs to be done before they're even released. That work starts prior to the release. That's the reintegration plan that would take place within the prison estate itself, making the right connections in order to start to establish them prior to the individual being released. Six months seems a reasonable period of time in our view in order to address any issues that arise when a prisoner is back in the community alongside the reintegration plan that would already have started within prison in the build-up to the release. Given that some of those people will be some of the most intransigent prisoners who haven't engaged at all and therefore the parol board has felt that they can't be released, that you're satisfied that that is strong enough, I can secondly ask you if you envisage a softening from the compulsory period into further support in the community at the end of that six months. You don't see there being a clear break but perhaps a shading of the support that would be available following that compulsory period of six months. On your last point there, part of the reintegration of a prisoner, a long-term prisoner in particular, back into the community is to help to re-establish them into the community. Some of that re-establishment isn't about statutory services in themselves, it will be about other aspects, so for example employment, it will be about possibly other support groups that they benefit from making connections within that local area to help to support and sustain that particular individual. The six-month period will give a statutory period in which that can take place, so there's a fixed period where that type of intensive work can be undertaken. What it should be about is helping to make sure that that's a sustainable approach, so that sustainable connections are being made and that they will live beyond that of the six-month period itself. Although there won't be another, for example, if courts have concerns about an individual when they're going to release to have the option of an extended sentence, the six-month period should be used for helping to create those connections so that when someone goes back into communities about sustainable connections that they're making, not just for that six-month period in itself as well. Some correspondence giving evidence have suggested that some of those who are being released in this way have not engaged with the prison service as they serve their sentence, and that's why the parole board has perhaps thought that it is not appropriate to release them under parole. They're quite intransigent and perhaps not open to change. Are you sure that for that group of prisoners that the six months is long enough? Of course. Those are prisoners who, under the present arrangements, would get automatic early release at two thirds, where the parole board has got no control over the matter whatsoever. They are in the prison estate for an extended period of time, beyond the two thirds now, where it will be very clear that if they do wish to receive parole release, they will have to engage with the appropriate programmes in order to address any of the issues that the parole board can serve to be appropriate. There is an incentive there. I'm conscious that some of the evidence that you heard at stage one was that there is an element where that if you know that you're going to automatically get released at two thirds, why engage? Why bother participating in the programmes? That's now going to be removed. There is an expectation from the Scottish Prison Service that they believe that there will be an increasing demand for programmes as a result of ending automatic early release. They are working on that principle as well, because prisoners will no longer have the automatic element to release. I understand the point that you are making, but I think that there is also the benefit that we get from reducing the scope for individuals just to be released automatically irrespective of whether they've engaged or not. There is, of course, even for a prisoner who may have an extended sentence who, under those provisions, will have to serve their whole sentence in custody, and they may then have an hour, year or two years or three years of an extended sentence. It is open to them to choose whether they engage with services or not, but they're in prison. They can't be compelled to, but what I am conscious of, and as the committee has raised with me before, is to make sure that we've got those programmes readily available. Prisoners who want to engage with them and encourage them to do so are able to participate in those programmes. That's an area of work that I know that the Scottish Prison Service is taking forward just now, off the back of the inquiry that the committee entered into some of the issues. We are removing the fact that the automatic element has gone at two-thirds, which means that those prisoners now, if they want to release at an earlier stage, will have to participate in programmes to address their offending behaviour. Perhaps finally, for me, is it on the same issue? No, I was going to talk about resources. Just before you move on to that, when we had the SPS on one occasion in front of us, I think that Colin McConnell made the point that prison officers shouldn't just stop the interaction with prison officers when the prisoner leaves and goes out of prison, but he had a view that prison officers would have a role outside, just as social work would have a role inside, so that there was more of a melding rather than a sudden break. Is that something that's been discussed? If you've got somebody on a programme in the prison and then it continues outside, are the discussions with the SPS the role of prison officers following that prisoner and also vice versa, social work, whatever, following being within the prison? Well, it's not only being discussed, some of it's already happening. For example, if you go to tomorrow's women in Glasgow, we have prison officer staff in the team in the community. They are dealing with women who have already been in the prison estate, who are back into the community, so you've got prison officers sitting alongside housing officials, health officials, social work officials and with the police all working to help to create sustainable approaches to support those women back into the community. So it's already happening. There is certainly more we can do in that area. There's no doubt that the prison officers recognise that their role is changing. Some of the work that we're looking at just now with the remodelling of the female prison estate and taking a different approach will be looking at prison officers working in an entirely different environment from what they're working in just now with female offenders, which will be much more community-based and much more part of a multidisciplinary team working with female offenders. Yes, in elements, it's already happening. Will more of it happen in the future, certainly in the way that I believe things have to move? Thank you. Sorry, Alison. Thank you. I will really just quickly move on to resourcing, obviously, for this to be effective criminal justice social work services in particular and need to be adequately resourced. Can you tell the committee what consideration you've given to those changes to the bill as it's moved forward? So in response to the recommendation that came from the committee, we've set out a range of figures that indicate what the additional cost would be to these amendments to the prison estate and to the social work and also to the pro board and the other agencies that would be involved in that over what would be between, for example, the bill committee force in 2016-17, right up till it's been fully realised, which would be in 2030-31. So we've set out the cost and we've been quite clear that any additional cost associated with this that we will meet those costs. Having said that, though, as I've mentioned to the committee in at least one, if not more occasions now, is that there is far too much of resource within the criminal justice system caught up in dealing with short-term offenders who are in and out of our prisons on a constant basis. If we want to free up the resource within our prisons to be much more effective in dealing with long-term offenders, those who pose the greatest risk to our communities, then we need to make sure that we are being much more intelligent about how we use our prison estate. As the McLeish commission set out, it has to be used for those who pose the greatest risk to our community in a much more effective way. So I want to look at taking measures that will help to reduce that demand on the front end of our prisons, not just to release resource that can be better utilised within the prison estate itself, but also so that we can utilise that resource within the community setting much more effectively as well. That will take time and we need to reset that balance. Some of the work that, for example, mentioned around the female prison estate that we are looking about, also for the male estate, our deal with male offenders is about trying to make sure that we use prison much more effectively for those who pose the greatest risk and that we are using alternative disposals much more effectively for those short-term offenders that could either be diverted from prison or could serve their sentence in a much better and more appropriate way, which does not have the same resource intensity that we have within the prison estate. Can I just ask, first of all—Rod, is this the follow-on from this? I have John Wanting, a supplementary to that, and Gil Wanting is a supplementary. No, I am happy to work with him. Rod, John, sorry, then. Thank you, convener. Morning, Cabinet Secretary. Morning. Cabinet Secretary, I mean to understand that it is a manifesto commitment and you are prepared to put the money up to reach that. The figures that we have are that it is going to be £16.724 million in 2030-31. Now, the balance about which is more than half the present budget for community justice, which is 31.8 billion at the moment, is that you are able to give a projection because I know that you talk about only having the people who are posing a risk being in prison, but there must be some projection that can offset that ultimate sum of those we are going to imprison if there is legislation to go through or keep in prison longer. The figures are based on the assumptions of just what is provided for within this bill. Those figures are purely to do with this piece of legislation, but it does not take account of the other changes that we introduce into the system. For example, presumption against short sentences, greater use of alternatives to custody, changes in sentencing practice, and the Scottish Sentencing Council will help us to address looking at using alternatives to the traditional custodial estate as a form of custody. There are a whole variety of things that those figures do not take into account because they are purely to do with this piece of legislation. If I can give you an example, a practical example of where we are just now, Pomont Young Offender's institution is almost sitting at half capacity. Why is it sitting at half capacity? Because we are now much more effectively dealing with young offenders through diversions and alternative custody. While that is starting to feed into the adult prison population, I believe that it will, and it will lead to a progressive change within our estate. There are other things that we can do to help to accelerate that further. We are prepared to do that and looking at how we can take that forward. It would be overly simplistic just to think, given the figures that we have set out here, that that will just be an additional cost that we will have to put additional money in to meet. With the other changes that we take forward in the system, I believe that we will actually free up some of that resource that can be better used not only to deliver the programmes for those long-term offenders, but also to deliver more effective community disposals. I cannot switch things off just now. I cannot switch off the resource to the prison estate just now because it obviously requires it. I also want to see an expansion, an increasing amount taking place within the community disposals and alternatives, but we are in a period of financial restriction. I have to try to find a way in which to balance that. For example, the redesign that we are looking to do around the whole prison estate is to look at how we can release some of that resource so that it can be used in a more imaginative way. I would certainly be supportive of that, but I probably did not express my question properly. Is there any way that you can soak? Ultimately, are we going to end up not requiring Pullman? For instance, are there any implications that would ultimately reduce that top-line figure? We have representations from people such as the Howard League, who are saying that we are told that the direction of travel is to reduce the prison population, but here we have ultimately this sum that represents more than half the current sum for community disposals. I was a bit surprised at the Howard League's comments, because it was looking at things in isolation. It was looking at it purely in terms of this list. Is that not what you are doing when you say that we are only looking at this aspect of the bill? That is what I am saying, but their comments were based on that. The other aspects of what we are taking for within penal policy are addressing reducing the number of prisoners that we have within our prison system. For example, the stuff that we are doing around women offenders is about reducing the number of women that we have within our prison estate. You have to look at it in the whole, rather than in isolation, but those figures were produced purely for the purposes of this bill in order to give the illustration that if you did nothing else and just introduced this bill, that is what the implications potentially would be, but we are not doing nothing else. Is it on the horizon that there would be figures that would offset that cost? What sort of timeframe are we talking about? It is very difficult, because even the figures in here are assumptions. They are based on existing sentences and practices. They are based on the on-going rates at the present time for offending behaviour. If that changes, then that will alter as well. There are assumptions, and the prison estate has to work on the basis of assumptions all the time around a whole range of variables that they do not control about what the demand may actually be on the system. It is difficult to say a look by this date that the prison numbers will be at this level for certain, because there are so many variables in there. What we can do is, as I have mentioned a number of occasions, is to make sure that the way in which we are taking forward these areas of policy, if we do so in a much more integrated way. The stuff that we are doing around provisions around community alternatives, diversions, and how we can make sure that that is much more closely linked in with the way in which we are also pursuing policy within the prison estate in terms of how we utilise resource and how we actually then apportion resource to meet those different demands. I am hesitating to start getting into arbitrary figures because the reality is that, in this area, there are so many different variables that it is very challenging to come up with that specific figure that would hold to be accurate in the long term. In the event of the early release at the present time, we have housing, social work, services, welfare and benefits, and other things that have been budgeted for. It is not your budget, I may say, but it is somebody else's about the taxpayers' money. Looking at your tables, there is no reference to that. For us to get a picture of the real cost, we can see additional costs for the prison service, etc., but if people are now not in the community—that is what that provision will mean—I am not in the community and the money being spent there will be in prison, and the money will not be spent in the community. I wonder whether you have any figures relating to that and all those other provisions that will not be happening, but they will be undertaken in the prison. The challenge for us to be able to provide those figures is because the figures that we can provide for the prison service and, for example, criminal justice social work are pretty much fixed costs that we can identify. For individuals who are in the community, it depends on what their status was at that particular point and what services they were engaged with, so we do not have that same at a general fixed cost. If you were asking me about alternative disposals against a custodial disposal, we all know that the cost of community provision is much lower, significantly lower than it is to deliver things within the prison estate, but because there are so many variables for their own individual circumstances before they end up in prison, it is very difficult to estimate what those costs would actually be. The point is that some of the figures are quite significant when you add them up, like provision for housing, and it will be local authorities that will need to do that part of the job. You will get social work local authorities again, and then you will get benefits, and these are reserved matters. However, it is just to get the idea that when we want to make change and people just see costs going in, it is not the real cost. We know that for the prison service, yes, of course it is, but the real cost is not the same, because I hate to use the word savings, it is offsetting the right word. It would be worth while looking at that to sell this programme to the wider public, because it is not the real cost that we have been given here. It starts to become artificial in terms of the actual costs of it, but there is an element where there is an offset cost that is associated with someone in the community who may not be in touch with criminal justice work if they are getting a housing benefit, etc. However, having said that, because the variables are such for individual circumstances, it is very difficult to come up with clear figures on that, because with the prison estate and others, we have fixed costs that we can clearly identify in which it costs an individual. However, it is overly simplistic just to look at the £17 million and think that that is what the additional cost is going to be. That is the additional cost when you do not take the offset into account that you have mentioned, but also if we did nothing else in the system, that is simply not the case. That is why I was a wee bit surprised at her league's view on the matter. Thank you, cabinet secretary. I have one small question before I move on to my main question, but it is a small question just on the six-month period, the mandatory period of supervision. Some critics have suggested that, at the moment, we have a proportionate way of dealing with automatic early release, moving to a six-month period where you will lose that proportionality and therefore distort sentencing. What would you comment on that? I am not entirely sure that two thirds of automatic release is proportionate, because it is two thirds. The parole board does not have any control over it. What I think is proportionate is parole release. The parole board, in considering a case where someone applies for release, can determine whether they think that they are suitable for release at that particular point, given their circumstances, what programmes have been through, etc. I would see parole release as being proportionate. I do not see automatic early release as being proportionate. The six-month period is in order to make sure that we reduce the risk of someone reintegrating back into the community in order to help to support them, because we know that there are particular risks when a long-term prisoner is moving back into the community. As I mentioned, that is a 60 to 12-week period in getting them re-established. The six-month period will allow that to happen and to take forward any additional measures that are necessary to help to support the individual in getting back into the community setting. I do not view automatic early release at two thirds as being proportionate. On 20 January, we heard from John Warf of the parole board in relation to figures that, and what he said, it is clear that those are released on non-parole licence at two thirds of the way through their sentence and without an assessment of risk tend to be recalled in significantly greater numbers than those that are released on parole licence, where there is an assessment of risk. You subsequently gave evidence on the third of March. Obviously, that evidence is incorporated in the amended financial memorandum at paragraph 34, in particular. We have also had evidence more recently from Dr Monica Barry, which indicates that those released automatically pose less risk than those released by the parole board. How would you say that? I have not saw Monica Barry's research in itself, so I cannot comment on that in great detail. It would appear to suggest that the parole release is less effective than automatic early release, which I would be somewhat surprised at, and I would suggest that the parole board, in some ways, is almost making things worse, which I would be surprised if that is the case. However, as I said, I have not seen the research in detail, so I cannot comment on it in great depth. It may be that they have once had an opportunity to look at it. We can consider those issues in greater depth. I gave evidence at the committee the last time, as you mentioned. We looked at, for example, the figures for 2012-13. There were 476 prisoners who were subject to supervision in the community after parole release, and there were 403 who were subject to supervision in the community after non-prorol release. The rate at which non-prorol release prisoners breached their licence conditions was 37 per cent, compared with 5.5 per cent for parole release prisoners. Someone is effectively seven times more likely to breach their licence conditions if they receive non-prorol release. In terms of recall, in that year, you were five times more likely to be recalled for breach of your licence to prison if you were automatically released, rather than parole released as well. Those figures in that year give a clear illustration of the difference. Obviously, you have heard some other witnesses make reference to the differences as well. Thank you for that, cabinet secretary. At the very least, I am looking at Mr Watt's evidence that, as far as recall to custody is concerned, both yourself and the parole board seem to be taking a different view to Dr Barry. We are, as I say. I have only sort of a headline figures idea, so I am a bit surprised because it would seem to suggest that the parole board made the matter worse, which I think most people would be surprised at, given the level of detail and consideration that they give to prisoners prior to release. However, the figures for 2012-13 give a good illustration of the difference in the course of a year. The six months is compulsory. That is part of your sentence, the six months. It is on licence. There will be conditions attached to that licence. If you breach them, you are back in prison. I take it. You would be recalled. The conditions will be set by the parole board as well. What is the difference between that and parole? It is very similar to that in the person receiving parole release in that they would consider what measures they think have to be put in place. For example, you can apply for parole after seven half of your sentence. The reality is that the vast majority of prisoners, long-term prisoners, will receive a parole release. However, in order to achieve that, there are certain things that prisoners have to go through before the parole board will come to determination on where they think they are fit for parole. In any way, they allow you to parole and they set the conditions. The difference with the six month period is to help to support the reintegration. So, back into the community, but alongside that, there will also be the conditions that the parole board can set in order to help to support your reintegration into the community. You have not got the option of serving your entire sentence and coming out scot-free, as it were, with no conditions? No, for the very reason that the committee highlighted in the report, because of the risks associated with that. So, it is a six month period. Whoever you are, if you have not got parole, you are coming out after six months, but you are still serving a prison sentence but under supervision out in the community. You are coming out at the end of six months prior to the end of your sentence? Yes. Not after six months? No, no, you are coming out. The six months is part of your sentence. Yes, it is part of your sentence to address the risks of someone coming back into the community. Yes, I understand now. So, you are coming out, you have not finished your sentence, this is still your sentence, but you are serving those six months in the community. You do not have an option and say, I am just going to stay in prison for the next six months, then I can come out and won't matter. The reason that it is within the sentence is because that creates the legal provision where the parole board can set conditions. If you do not do it within the sentence, then you do not have that authority to do that. Yes, so it is making sure that we do something that we reintegrate. I do understand it. I know that it does not sound like it, but I do. At least, I think that I do. Roddie, are you finished? Yes, I am happy, sir. Elaine? That is my first question answer now. In terms of the demand for prisoner programmes, the financial memorandum only puts a cost of £171,000 by 2030-31, and it also only kicking in in 2019-20 at the cost of £43,000. Is it not possible that, under the new regime, there might be a greater demand for prisoner programmes, particularly if prisoners think that that will make them more likely to get parole? Are those sums sufficient? I have not got the answer with me that my colleague Graham Pearson posed some time back, which indicated that around sex offenders there were something like 100, I believe, who had been assessed as would have benefited from the sex offender programme, but who are not actually on it at the moment. Is it not possible because of the changes that we would need to frontload the prisoner programme? Is it not possible because people have not been able to access programmes? Those figures are assumptions based on a snapshot here and now as to the implications of that. I think that the SPS and the evidence to you indicated that they were expecting an increasing demand for prisoners to participate in programmes as a result of the ending of automatic early release. One of the pieces of work that they are doing already is that they have had their purposeful activity review. Part of that review has identified issues around access to certain types of courses and also around psychological service provision, and they are about to commission some work to look at taking these matters forward. The biggest challenge that we have within the prison estate is that there is so much, as I have mentioned earlier on, of the resources tied up in dealing with the churn of shop term offenders. The prison service, like any other public service, has to live within the budget that it has. During this period of austerity, that has grown ever tighter, and they have to try and make sure that they can deliver as many effective programmes as they can within their budget at the present time. My view is that if we can release some of the resources that are tied up in, as I say, significant amount of resources that are tied up in dealing with a lot of those shorter-term offenders, that will help to release some of the resources that will allow us to expand and develop some of the programmes within the prison estate. There is a balance to be struck there in trying to achieve that. However, those figures are based on assumptions that could vary in year and across several years, but they are based on the present figures. I hear what you are saying about short-term prisoners, but, at any one time, it is only about 10% of the prison population, which are the short-term prisoners, because they are coming in and out, and the longer-term prisoners are there for a longer period of time. Even if we can deal with that situation, they are probably not getting as much of the prison programmes, either if they are only there for short periods of time. Would that address the balance of what we can do with that? It is a smaller proportion on a given day, but, over the course of a year, it is thousands of prisoners in and out of the system, so it is a big, big, big turnover. We should not underestimate the amount of resources that the Scottish Prison Service has to dedicate to managing that. That is why we need to be much more effective in dealing with that, in order to make sure that the resource, as Henry McLeish said in his commission, is that we need to make sure that we are using it in a much more effective way and much more targeted at those who pose the greatest risks to our community. However, a lot of the resources are still tied up on those who pose the lowest risk, which means that we do not have the same level of resources that we may wish to have to help to support those who would pose the greatest risk. That is not to say that there is not a lot being done in that area, but could we do more? Of course we could do more. We could use the resource much more intelligently and much more effectively if we had less of that chum of short-term prisoners. If the SPS review that you referred to in the revised memorandum comes up with a significant increase in the need of either provision of programmes or psychology provision, which is pretty important. That indicates that there is a considerably greater need than we are able to provide for at the moment. Will the resources be there for us? If there are additional resource demands at some point in the future, we will have to look at them, yes, and to try to address that as effectively as we can in order to make sure that they can deliver the programmes that are necessary. It is potentially years in advance, so I could be making a commitment just now that someone else might have to live with, but I am certainly committed to making sure that we try to provide the resources that are necessary for the SPS to do their job as effectively as possible. First of all, to go back to the aim of the bill where it was brought before us, it was talked about public safety and making sure that the long-term offenders will not be released in cold release as we learn about the cold release proposal, which was very often in the present system, the case where people were released in cold release. There was a justification that it needed to be changed for the protection of the public, and particularly the Scottish Association for the Care and Resettlement of Offenders. Sacro talked about this, about the balancing act and making sure that we talk about public protection, but we did say that the period, the monetary period could be only three months, that it would maybe make more sense to have a smaller military period to make it maybe easier and to focus maybe the long-term offenders, who do not want to engage, to focus them on this three-month time to make sure that they do engage. It makes sense, maybe in their ways, and I do agree with them that a smaller period will maybe focus their minds. The evidence that I think you heard from Sacro will be largely around that six to 12-week period that is often to be key for a prisoner going back into the community, where there are significant risks in managing those matters. The reason that we have tried to strike the balance is because you have also heard Evans where some would say that it should be a year. There are also some of those who say that it should be completely proportionate to the length of sentence that you serve as well, which I do not agree with, but that is the other view. We have tried to strike a balance. The reason that I think that six months is an appropriate balance is because there will be some of those prisoners where the three-month period might be sufficient, but there will also be prisoners where it may not be sufficient. It is to give a level of latitude there in scope, which will hopefully address those where the three-month period might not be sufficient in order to address matters when they move into community. Having listened to the evidence that you have received as a committee, the views that have been expressed in this matter and considering what is a reasonable timescale to deal with those matters, six months is our preferred option, which I believe will be sufficient to address the vast majority of prisoners for their period of reintegration back into community. I understand that it is a judgment call just now, but because it is not going to be permitted before 2019, there will be plenty of time to prepare for this. We would have thought that we would have concentrated the mind as a services to make sure that we would be effective in the period of three months instead of six. It could be that, in time, people will say that the six-month period could be shortened. I think that part of what is extremely important here is that, when a prisoner is being released, it is not all dependent on just that six-month period. It is a property work that takes place within prisons that is extremely important for planning around those matters. For example, we know that the issues around housing can prove to be a real deal-breaker, if you like, in the effectiveness of a prisoner moving back into the community and sustaining themselves there. Some of the work that we are doing in Perth just now is the partnership between housing and the prison service to look at how we can manage that more effectively. The offender reintegration ministerial task force that I head up is about trying to make sure that, from health to housing, the whole range of other services are working much more joined up in co-ordinated fashion. The second provision in the bill is informed part by that about having that flexibility on days of release in order to help to support the reintegration of a prisoner back into the community. It is in all of our interests that, if a prisoner has served their punishment in prison, we also make sure that we do everything possible to reduce the risk of that individual committing further offences and the reintegration element of it is a key part of it. That is where the reintegration plans start prior to a prisoner moving back into the community to look at getting things in place and planned in place prior to them being liberated from prison. That six-month mandatory supervision period gives us the added security of being able to recall them if we feel that their behaviour is unacceptable, but also to give a clear focus in on the type of support that is necessary during that period. My last question is, because of the six-month mandatory period and because the way in which we deliver to the parable involvement, can you say, cabinet secretary, that you have removed the word automatic from automatic early release? The principal reason for the bill in itself was to end that automatic right to early release at two thirds of a sentence, and that is what the bill achieves. What we are doing is creating provision for that mandatory period of supervision within the community to help to support the reintegration into the community. That is a mandatory period, which, as the conveners correctly pointed out, is not optional. It will have to complete. Because there is no automatic element to that, the long title of the bill needs to reflect that. I wonder what sort of discussions have been with COSLA about the implications for local government about those changes. Discussions that we are having with COSLA just now are around the community justice bill and the reshaping of community justice and the creation of community justice Scotland. Part of that will be significant reform in a way in which we deliver community justice provision in the future, and the impact of the bill will be part of that overall approach. I am not known for being wicked. Can I thank you very much, cabinet secretary, for your evidence and say to members that we will take further evidence in amendments from Professor Fergus McNeill and Professor Dr Cyrus Tata tomorrow morning from 10.30, 10.30, all right, and then consider the formal amendments on 2 June. Thank you very much. I now suspend for... Do you want a five-minute break for Sreon? We go to item 3, the Quietest Fateful Accidents in Sunday, Scotland Bill, and we've got evidence today from two panels of witnesses. I welcome our first panel, Leslie Thompsons, Mr General for Scotland. Good morning, and Stephen McGowan, Procurator of Fiscal, Major Crime Fatalities Investigation Crown Office and Procurator of Fiscal Service. You've got a longer title than I'll tell you. Thank you very much, and I'll go straight to questions from members. I've got John, and then I've got Roddy, so far, and then I've got Jane. Thank you, and then Elaine. Thank you, Colleen. Good morning, panel. Ms Thomson, the question of... In a lot of the evidence we've heard, there's been a lot of reference to family interests, and I would ask it first and foremost. Families take very varied forms nowadays, there's extended families, there's different parts. Who is the family that you would bear in mind when you're making decisions? Can you also comment on the balance between the family interest and public interest, please? In relation to the family, we take a wide interpretation of families. We've learned over the years that you can't be restrictive about this, and in many families there will be groups that, for example, we would require to meet with separately and provide information to separately. Although there is in general in life what's understood by a traditional family group, we don't apply that in-house, and we find on many occasions there are families with different views, etc, as to how much information they want, the way they want that information, and ultimately, at a fatal accident inquiry, whether they're going to attend or whether they want to get their information via the crown. On the public interest, what takes precedence? It's not so much. Are you asking me if the family interest takes precedence over the public interest? Yes, indeed. The family interest is part of the public interest, and no decision is made in relation to whether or not there's going to be an inquiry without having the views of the family taken on board. If the family said no, but the public interest was compelling? Yes, there would be a fatal accident inquiry. That situation does happen, and that can be difficult, just as difficult to explain to families as not to have an inquiry for families who wish to have one. We've just received a late communication from Mr Marshall, the president of the Solicitor Advocates, where he talks about the different aspects of public interest. He talks about the public interest and the enforcement of the criminal law by prosecution, and the public interest in lessons being learned for the future by holding an FAI. Can you comment on that? Am I at tensions? No, there's not tensions. There are different decisions at different points. The public interest encompasses all those things at different times, and in relation to the public interest in ensuring that someone who has been involved in criminality is brought to a court for that is the public interest that takes precedence at that stage. That's why, if there are criminal proceedings, it's not always an immediate decision as to whether or not there should be a further inquiry because you're looking at different aspects. The example that we all have at the forefront of our minds is what lessons can be learned. A lot of work is taking place in the background by the very nature of it being confidential. The public are never going to be aware of that, but there's a compelling public interest about an issue of public safety. How would the public kept advised of that without compromising any procedures? While the investigation is on-going, if there were compelling issues while the investigation was on-going, the Crown would feel bound to share those with various authorities so that steps could be taken. It's not unusual during an investigation for remedial steps to be taken, and you may at the start of looking at something think that this is a matter that will need to be inquired into in public by a fatal accident inquiry. By the time all investigations, reviews and remedial actions have been taken, there's nothing left that requires to go into the public domain for further public scrutiny now. Those remedial steps would be advised to the public as and when they happened. This is a regular occurrence, so the health and safety executive for accident investigation branches and bodies of that nature regularly during the course of investigations will put out material in relation to public safety in order that the public safety aspects can be taken into account quickly. Remedial steps such as that are taken. We've also got an arrangement with Healthcare Improvement Scotland where similar things can be done in the medical sphere, so whilst a criminal inquiry may be going, steps can be taken immediately if there's a particular issue of public safety that needs to be addressed at that stage. That's a fairly routine step and happens regularly in the types of cases that I've described. I can't recall, John, on the issue of the family whether you asked as a supplementary as the bill stands, if there's not going to be an FAI, if a request is made by certain parties, why it's not happening, the Crown is obliged to respond and say why there's not an FAI, do you think that that should be automatic? In relation to putting into the public domain reasons, why there's not an FAI? I'm looking at the reasons section 8, reasons not to hold an FAI. Reasons not to hold a spouse or so apart has made a request. Personally, there's married a nearest known relative. It's basically relatives being able to ask why you're not holding an FAI. I don't think it's a public issue necessarily, whether it went public is another matter, but whether that should be automatic rather than, if you're not going to hold one, just to tell people why not and rather than for them to request because there may be, for a reason, no state to ask for it, it may be unsure of things, it may not be unaware of the rights under law. I don't have any difficulty with that at all. You should not be happy that it's automatic. In practice at the moment we do provide those reasons. We have been looking at other ways in which we can ensure that families are continually kept in place. That's in writing, which should be different. In writing, yes. So you have no problem with that being automatic, if you're not going to hold one, you just tell relatives that it would mean to them. And in practice that's what happens at the moment. So we don't need to have that section when it's got to be requested? I don't think it needs to be requested, no. No, we would do it automatically. And we would do it automatically, potentially to a wider group of people than the Bill suggests, as the Solicitor General described, the dynamics of the family. Yes, but the Bill actually says that the Lord must give reasons in writing if requested, but we don't need necessary requests. The other thing I was going to ask is because one of my colleagues isn't here, he was chasing the issue of early hearings, which Lord Gill pretty well, very convincingly, obviously, swept to the side for various reasons, what is this and so on. What's your view about early hearings to keep the crown on its toes? I've been thinking some more about this and I'm also of the view that you can't use the court system for those form of hearings because it would be requiring sheriffs to take decisions and control of our cases that we're never going to reach them. But what I think is important and what a lot of people have raised is having a set process in place so that families know what's happening at certain stages and that there is an element of control over that timescale. I've asked the Crown Office team in SFIU to look at producing a charter that would go into the public domain, which would indicate the various stages that certain milestones would happen and, in relation to early hearings, I think that the equivalent at the investigative stage would be a hearing or a meeting, whatever you want to call it, set by the fiscal at a certain point in time. What I have in mind at the moment is three months from the date that the death is reported, at which point the fiscal would be required to provide certain information to the family about the stage of investigation and the timescale going forward. It wouldn't be the decision but it would be this is what's done, this is what needs to be done, this is when there will be the next meeting. It would be open to families if they didn't want to turn up. I think that it's important that the Crown could have that set going forward. We're working on that and we're going to consult on that milestone charter with the various victims groups and a number of the groups that have given evidence and publish that. Yes, would it be possible for, given that going down this road possible for that to be available before stage three, let's say, I appreciate the timescale, but so that the Parliament would have before it some idea of progress that'd been made by the Crown, your charter or your protocol or something like that. What's your date for that? Stage two isn't till after the summer, so we would hope to even stage two if I could push, but what I have in mind is that we have this done by the end of the summer. Well then, it would be handy to have that for stage two when we're considering amendment. Yes, I can give that undertaking. Thank you very much. You've asked one of the questions that I was going to ask. Oh, sorry about that. John had left that particular category. Could I move on to some of the evidence that we heard from representatives of various trade unions? Mr Tasker, when he gave evidence on 12 May, he took the view that new diseases or exposure to new industrial processes should be subject to a mandatory inquiry. If we accept for the moment that the bill does not so provide but provides for a discretionary inquiry, are you able to give us any advice as to how a new disease or a new injury would be approached by the Crown? What reassurance could we have that the discretion would be exercised so that there would be a fatal accident inquiry in relation to some new process? I think that the position is that it's exactly the type of situation that that discretion would be exercised to have an inquiry because there would be public concern about whether it was a new type of industry or a new type of disease and the issues surrounding either the new industry or the new disease not having been aired before. It would fall into the category of erring on the side of discretion to hold an inquiry because there hadn't been previous public scrutiny, especially with new industries if there were serious concerns around processes. I don't feel that it's the type of situation where it's necessary to have it in the mandatory category because there are all sorts of difficulties around definition in relation to that but I can indicate that it's exactly the type of situation that would lead to a discretionary FAI. We also heard evidence, particularly highlighted by the trade union witnesses, as to the importance of a kind of statement of fact. Would you like to comment on that? I wasn't entirely certain what they meant by that and I think that the example that they gave, if I recall, was in the sense that it happened in aviation accident investigations. I think that the nervousness that we would have in relation to that is in relation to after a three-month period of time how reliable would those facts necessarily be beyond saying that an accident has happened. Any comment that goes further than that at that stage potentially sets expectations for the investigations as it goes forward or sets public expectations for what happened in a way that might not be helpful. I wasn't entirely certain what they envisaged but if we take the aviation accident it's a particularly unique set of circumstances in an aviation accident and to do that of general application to deaths when the causes may not be known because of the complexities involved it seemed to me that that may cause difficulties going down the line in terms of prejudice in the future investigations and pre-judging I think more importantly where the investigation may lead in its once it's run its due course. Can I add to that that at the point where a decision has been made to hold a fatal accident inquiry the Crown's petition now includes the issues which are going to be raised as opposed to just indicating an inquiry should be held and also the practice has developed and I'm going to ensure it's embedded under the new preliminary hearing system within the Crown of providing a list of issues at the earliest stage of the inquiry hearing which will be the preliminary hearing going forward which all parties can then add to or not so there's a very clear understanding at the point that the FAI starts of all the issues that everybody wants covered. Gil you'd want to supplementary on that? It's nervous to go back to Roddy's question on mandatory FAIs on industrial disease. Yeah it's just a point on that and I wondered if you had any views in the likelihood if there was automatic referrals or FAIs if that would impact on budgets and would it affect when we know that lots of people who suffer from asbestos related diseases require legal aid would there be a prospect if there was automatic or mandatory FAIs for industrial diseases that that would actually divert because you've got a finite budget in justice would it divert resources to that and take it away from the need for or some prospect of restricting legal aid is that possible or am I? If industrial diseases were mandatory yes it would increase the number of FAIs which and our view is it would lead to a large increase in the number of FAIs and many would involve repetition of the same issues as far as legal aid is concerned that that's not a matter for the crown beyond indicating that if there are more demands on the on the same resource then there's like there's going to be a conflict. But the reason not told me isn't to do with money as I understand it it's to do with mandatory FAIs into new industrial diseases it's not to do with the fact that there'd be more impact on your funding it's to do with whether it's appropriate. Yes it's to do with whether it's appropriate and I think when I answered earlier when we were talking about new industrial diseases or new industrial types of working or industries rather it's exactly the sort of situation that we would anticipate there would be discretionary fatal accident quieter. Okay just to clarify I've got Jane, then Elaine, then Christian, then Alison, then Gil. Thanks, convener, morning. The committee's here concerns that the current systems for investigating deaths may not be human rights compliant so I'd like to ask what steps the COPF takes at the moment to ensure that our obligations under human rights legislation are met. In relation to the investigation of deaths there is the Scottish Stalities Investigation Unit which is an independent investigative unit within COPFS that ensures that all evidence is ingathered expert reports are prepared if necessary thereafter if there are issues which require public scrutiny it will move to a fatal accident inquiry thus ensuring the two strands of effective investigation and public scrutiny public scrutiny in public. If there are issues which have been resolved and remedial action taken then the crown will wish to ensure that that has been taken forward within the organisation that is taken the action. I think that Mr McGowan made reference to the work that we've been doing with the NHS to ensure that any practices which are discovered during an investigation are taken forward and that has the effect of ensuring that the investigation has been effective, has been scrutinised and action has been taken as a result of it. Do you think that an FAI should be mandatory in the case of looked after children or people who are subject to mental health detention? I think that the balance within the legislation is appropriate at the moment if you look at mental health detentions there and the purpose of mental health detentions, care of people, not the same public concern about for example those who are in custody as far as either police or prisons are concerned, where there's an element of punishment as well as an element of care. However, if you look at the purpose for which they are there and the type of persons who will be under that sort of care, there are a large number of natural deaths and it would cause distress to families, I would expect, to have those as mandatory. What you need to ensure is that there is an effective reporting system so that those deaths are reported to the fiscal and we've been doing a work in relation to ensuring that there is such an effective reporting system. Thereafter, an independent investigation by the Lord Advocate, which is independent of all the other organs of state and if there was also a review or some form of inquiry, for example, by the Mental Welfare Commission, I think that in order to ensure that it's human rights compliant, consideration has to be given to making sure that all that's in the public domain. If not, then it's a matter of thought of advocate to ensure that the investigation and outcome is article 2 compliant, and if it wasn't covered by any of those other ways, then it would require to a fatal accident inquiry. That ultimately is the final safeguard. Can we go back to mandatory inquiries section 2, subsection 4 and subsection 4b, a child required to be kept in secure accommodation or detained in secure accommodation? I posited to the Lord President that if they were not physically within that secure accommodation but they were under state care by order of the court for their own good or for the good of the public but they were out and about, would that apply? Would that particular which says required to be kept? Have they actually physically got to be in the secure accommodation for that to apply? They have to be kept or detained, so I think that anyone who is otherwise with foster carers or elsewhere— No, I didn't mean that. I meant that the child might have been kept or detained in secure accommodation but they might be out and about because they're required to come back, as happens. They're not kept in all day long. If they were out and about, if something happened, would that section apply? Do you mean out and about as in they've gone to school on a particular day but are they coming back? Yes, they've gone to school or they've gone out or they've not come back. When they ought to have come back to the secure accommodation, would that apply? I think that the section talks about being required to be kept or detained, so I think that arguably it would apply but it may— Even if they're not actually physically within a building? Even if they've left that date, I think further to be absolute clarity than the situation in which you describe where they may be out for the day at school or elsewhere, it would be helpful potentially just to clarify that in the legislation if that's a legislative intent. So it's not clear that we'd have to have some other wording? I think that you could interpret it that way but I think that there may be challenges, so in order to have absolute clarity, I think that you raise a very fair point that it would be better to— I mean that a child who is there under their own protection kept her under and I had a case that is very broke out and was two days wondering about before we could be retrieved. Now, if something had happened in that period, that wouldn't have necessarily— I think that if they broke out, I think that I'd be comfortable in interpreting that as the fact that the child should have been in the accommodation, but I can imagine situations where the child was being kept in secure accommodation but was in mainstream schooling and was travelling to and from mainstream schooling or such like that, there would be a shade of grey round about that that may be worth clarifying, but if they broke out and absented themselves from a place that they were kept— Or a door was left unlocked or something, that would be different if the door was left unlocked. I think so because— And then something befell them? Yes, because technically they should have been in the place to which they were being kept. Okay. I might proceed it further. I think it's their status which is important. I would like to think we would interpret it in the way that you are indicating and if it's necessary to amend the wording to clarify some of the issues. Yes, I thought that it was their status rather than the place, but I thought that that was more like the place anyway. I'll just press that further. I've got Elaine, followed by Christian. Thank you, convener. Can I turn to the issue of sheriff's recommendations? As you'll be aware, Patricia Ferguson's proposed member's bill would make compliance legally binding, after hearing to discuss any issues, whereas section 27 of the bill requires responses that are made to the Scottish Courts and Tribunals service. I ask for your comments on those proposals in terms of sheriff's recommendations. In relation to sheriff's recommendations, there are a great deal of difficulties if they were legally binding in the sense that it would widen the scope of the inquiry, may end up being unenforceable, because the sheriff had been looking at the particular circumstances of the death or deaths before him and has the danger of turning the inquiry into an adversarial process. The important thing is that the recommendations are out there in the public domain and that those who are on the receiving end of those recommendations are required to see what they've done about them. I had some evidence from witnesses who felt that SCTS wasn't necessarily the best place for the recommendations, the responses to the recommendations to be published, that perhaps the Scottish Minister should have responsibility for doing it, if the recommendations require legislative change, it would be ministers who were responsible for bringing forward that legislative change. That has certainly been suggested in a letter from the sheriff's association that Scottish ministers could be given the power to bring forward subordinate legislation under the bill to promote compliance. Others have said that perhaps the Lord Advocate would be the best person to collate the responses. Do you have a preference of any of those? I don't have a particular preference beyond reiterating after having worked in this area for many years. I think that it's extremely important for families who want lessons learned that those lessons are learned and that recommendations are taken forward. On the occasions where there's not a necessity to have an FAI, but there are lessons that have been learned, the Crown take their duty of making sure that those who need to know do know, and if that includes Government, it includes Government, but beyond that the Crown would assist in whatever method was thought the most appropriate. What can a family do if they're not happy with the results of an inquiry? What's the recourse for families who are not content after an FAI? The only recourse, I think, would be to judicial review the decision of the sheriff, but that would be in relation to matters of law rather than specific facts. I don't think there's ever been a challenge to the facts as determined by the sheriff that I can think of. There might bring civil proceedings. Often there will be civil proceedings in all of these cases in any event. Okay, I'm going to take Gil because Christian and Alison have waited a while. I'll take them first, if you don't mind. I'm still coming back to them, because they've waited a long time. Christian, then Alison, then Gil. Thank you very much. Good morning. Regarding section 6, inquiries into deaths occurring abroad and particularities and subsection 1.c, the person body has been brought up to Scotland, do you think that there's been some cause for this to be amended for exceptional circumstances? Do you think any difficulties if the bill was going to be amended? Sorry, my healing is... Sorry. Yes, it's regarding death occurring abroad. It's a requirement to have the body recovered and sent back to Scotland. There has been some cause during this, in front of this committee, that this amendment will be removed, especially for exceptional circumstances where the body, for written another obvious reason, cannot be recovered. Do you think that an amendment is put forward and changed the reason for a particular point? Do you see any difficulties? Can I say a couple of things about the new power to hold inquiries in relation to deaths abroad? There are no powers for the Crown to investigate those deaths without co-operation. The reason I'm mentioning that first is because it then becomes very important to the Crown the repatriation of the body because that is evidence and, in many respects, may be the evidence of the cause of death. There has been at least one occasion in the past where the information that came to the Crown was a cause of death and a post mortem. It could be seen visually from the body that no invasive post mortem had been carried out. That's part of our thinking around that, but it's entirely in line, as I understand it, with what the coroner does. Nobody likes to have rules where there is the one exception that makes it all look silly. I wouldn't have any difficulty around there being exceptional circumstances that would require to be justified to allow the Lord Advocate to go down that route when there hadn't been repatriation of the body. Thank you very much for that answer. In leaning on what you told us about the co-operations with other countries' jurisdictions and police as well, do you think that the bill could be a bit clear to specify that point that money shouldn't be spent to develop an investigation or to go overall sending police officers, for example, to do a job which has been done already? Do you think maybe there is a need to limit the remit of the bill on that point? Because there is only £157,250 in the financial memorandum for an assessment of likely cost associated with investing death abroad. If we could see, if we duplicate what another jurisdiction does, you know, that someone could increase a lot. People are working and leaving abroad a lot more than they used to. I don't think that it requires to be in the bill. In relation to investigation, the Crown is well placed and has a lot of good relationships with a number of other countries in relation to deciding whether or not what, in effect, you would be doing would be duplicating efforts. I don't think that that requires to be contained within the bill. I'm quite interested about that. In the time being, just now, we don't send investigators abroad or we don't spend that vast amount of money to see what happened abroad or to check what the situation is now. We don't have power to send our investigators abroad in relation to these matters. This legislation doesn't give us that power either. It would be, as a result of co-operation with the other countries through the foreign and commonwealth office. We have powers in relation to criminal investigations in order to gather evidence under mutual legal assistance. We have a certain amount of knowledge as to which countries will co-operate quickly and which countries may take longer. In the unusual situation, if there isn't any method of co-operation, we have that experience. Mr Finnie spoke to you earlier about the role of families in the importance of their feelings and views on the situation. You responded fairly positively. Am I right in my understanding that, at the moment, if a family wanted to challenge a decision perhaps around whether a death was self-inflicted or accidental, that there's no formal mechanism for the family to do that, to challenge your conclusion on that? We don't come to any conclusion on whether a death is self-inflicted or not. We would come to certain conclusions, but we don't make any determination that there's a death as self-inflicted. What we may come to is an investigation that may reach that point. We may have a discussion with the families about that, and there's a certain statistical return that's put in, but it's not a formal finding that we have. I think that the Public Petitions Committee had a petition in relation to that matter, and I think that I gave evidence in relation to that matter on a previous occasion, but there's no formal finding in relation to that by the Crown. There would be a couple of points at which the Crown says that we don't think that there's any criminal activity there, and therefore the assumption would be that it has been accidental or self-inflicted. That would depend very much upon the circumstances of the case, because if there was any suspicion that the death may have been homicidal, the case is likely to be an unresolved homicide. There are some cases in which we would treat as unresolved homicide where there is no clarity around the cause of death, so it depends upon the individual death. There are some cases where, for statistical purposes, we may send a return to the general registrar's office saying that, in the circumstances of this case, we suspect that death has been suicidal. There are others that are accidental, which wouldn't be part of that return. There are others where there may be a suspicion that the death has, in some way, been homicidal, but the evidence at that point in time doesn't support that, so there are various categories of cases. Is there another category of just unassertained deaths? Yes. If the family feels that there should be further criminal investigation, there is no way for that to be challenged. There is no independent assessment in the system at the moment. The independent assessment is the Lord Advocate and the Procurator Fiscal reviewing the police investigation and directing that police investigation. That is the independent review that there is. You don't see any merit in there being, perhaps, a sheriff's inquiry at where there is that kind of dispute. Is there any parallel with, say, a coroner's inquest, which is used much more frequently down in England? I don't see any merit in that. It may well be that there is a fatal accident inquiry in that type of death. I was just going to add an in-house we do if there has been a request to review circumstances review in-house with different people. We've done that on a number of occasions. It's still the same organisation, but we're looking at it with a fresh pair of eyes. It's akin to the victims' right to review under the new legislation. Are you able to explain to me the role of coroners in quests and how they operate in England and why we haven't followed that system here? We're not always going to say that constitutionally we just have a completely different system. The procurator, Fiscal, was here first, so to speak, and down south there was a coroner, and then they had the CPS. No, no, I... We can sometimes learn from other places. You're finished. I'm going to take Gil first because I've parked him. Then I'll take you, John. Yes, but I've parked so previous at another point, Gil. Yes, it's just in Sheriff's recommendations. Is it actually possible for Sheriff's recommendations on a specific point to become compulsory without legislation, or do recommendations from Sheriff's currently, and is that what we're talking about, actually look at the law as they are and make a recommendation because the law was not carried out properly? The recommendation usually has two practices that could have been changed rather than specifically the law, because the sheriff is looking at the system and any defects of work within section 6 of the current legislation, and recommending what, if it had been in place, the death may possibly have been avoided. But again, it would be possible for a sheriff, even though there was maybe a change in the law required, that a recommendation is only a recommendation. It's not anything that some other second or third party would be forced to act on. It's just a recommendation without legislation. That's the interesting answer here. John. Mr MacKinnon, if you could help me to clarify something about being misunderstood in relation to a response that you gave to Mr MacKinnon. You said that, if there were any debate, the independence comes in the—with regard to whether an FAI should proceed—that independence comes from the Lord Advocate. I was referring to the situation of the criminal investigation, which I think was part of the question. If there's a criminal investigation, where does the independence come in if the family aren't happy about that investigation and where it's come from? In relation to the FAI and a decision as to whether there's an FAI, a discretion FAI, that's the Lord Advocate again, independently, and there's a remedy of judicial review if the Lord Advocate decides not to exercise his discretion in favour of having an FAI. But crime in Scotland has investigated the behest of the Lord Advocate. Yes. So is there not a conflict between those two? Between having an FAI and— But suggesting that someone who's saying, I'm not going to have an FAI, is also the person who's directed any criminal inquiry that may have also taken place. No, I don't think that there is. I don't think there's any conflict of interest in relation to that, and it comes down to the points that are such a general measure. Is independence the appropriate term, then? Yes, I think it is. I think that the Lord Advocate independently investigates crime, prosecutes that crime, and investigates death. I think independence is the appropriate term in that regard. It comes back to the solicitor general's point about all of the factors which make up the public interest, and I don't think he can disaggregate those points and say there's a different public interest in a particular aspect in relation to an FAI or a criminal prosecution, or a family's interest. I think those are all factors which, when taken together, are factors which go towards what the public interest actually is. Can I just perhaps indicate that it's how that's done in house, which is important, and it's done within separate teams of specialists, and, as I indicated earlier, different aspects of public interest at different stages. In relation to criminal proceedings, let's see the potential for high court proceedings. At that stage, the circumstances will be looked at by the prosecutor, sometimes within the health and safety division, and then to crown council for a decision on criminal proceedings. It's not the same group of people that will then consider whether or not a fatal accident inquiry is appropriate or what further investigations there should be in relation to a fatal accident inquiry. Although those groups work together, it is a separate process and a separate report, and there are two specialist crown council now within the team who deal with these deaths-type matters. I think that independent is the right word to use, but I think that I have to satisfy you that within the one organisation that independence is going on. But ultimately, it's still the same person who makes the decision, who has oversight of both these functions. It's invested in the Lord Advocate constitutionally, those two areas that I'm indicating. There's no personal criticism about it. No, no, I understand that process. Ultimately, it's the same person who's responsible overall charge of both of these things. It's the same person who's in overall charge. The individual decision making in relation to these two aspects will be different people within that. Two sets of different considerations. Yes, but someone has to be overall responsible. I want to ask about section 7, where nobody has asked about it, inquiries into deaths occurring of robidice, about service personnel. We've got your letter, which is excellent, legal treatise and why, at the current state of affairs, to a surprise, people serving the armed forces are not employees. I presume that they can't go to employment tribunals and things like that. Let's look at section 7, because that's the status at the moment. The lines here can only apply, and it's not a mandatory inquiry here, it's a discretionary one, if the death of the service personnel occurs abroad. One of the subsections says that there's a bit about being in custody at subsection 2, but in subsection 3, which is an alternative, was sudden suspicious or unexplained or occurred in circumstances, giving rise to public concern. Why can't we extend that, just not bothering about whether or not there's employee status to service personnel per se? If it applies to somebody abroad, I don't know why we can't do it for somebody in Scotland, if the same kind of circumstances arise and not even go down the road of whether or not you're an employee in the efforts mandatory. The genesis of section 7 is section 11a of the 1976 act, which was added in the last few years to deal with matters abroad. I don't have the answer to this, and it's for Parliament itself. I think there may be legislative competence issues round about that in terms of the military, but section 7 simply deals with the military. I think the issue that the committee discussed at the previous hearing relates simply to whether or not it's mandatory in the UK to have the fatal accident inquiry into the death of service personnel, and it's not as discretionary as it is abroad. It's discretionary in the UK, but I don't understand. If somebody is a service personnel in Scotland, something happens to them that gives rise, notwithstanding perhaps an internal inquiry, it gives rise to a suspicion of something not quite right here. Could you hold a FAI? You could. We could hold one, but the point is that it's discretionary rather than mandatory. I don't understand that. There is nothing that despars us in any way from holding a fatal accident inquiry. I'm bothering about nothing really here. It would be a discretionary inquiry. Have you held any? I can't think off the top of my head of one, but I haven't checked. It's something that we can check on. We'll check it out. Just a wee feeling here that there isn't the protection to service personnel that there are to other people. I appreciate the status that they have from your explanation, but just this feeling and perhaps this isn't the place to deal with it don't know, will ask the minister. You're telling me in any event that if something happens here, Army recruits out training. If FAI could be held, even if there was an internal Army inquiry, would you get all that material back from the Army? You'd get absolutely everything. We would get that material, and we have done in the past in the incidents that I'm thinking of, for we haven't had an inquiry, but yes, we would get all that information from the military. I'll find out more about that, because it's so bosom. But there's nothing which bars us from it, and we have no particular view one way or the other on any of that. It's simply the law as it stands. It's just this word mandatory. There must be the inquiry or whether or not the Lord Advocate has discretion to order one, is the point that I was trying to clarify. But one could make it mandatory and not even mention the fact that there could be mandatory inquiries into service personnel whose deaths occur within Scotland, and you're not even treating them as being—just be a separate section—nothing to do with being an employee. In principle, we have no difficulty with that. I say that there's legisont of competence issues to explore around and about that, which I don't pretend to be answers to today. But in principle, there's no difficulty with that. I know, I see him waving. It's all right. You're very helpful. Christian, on the same point— Yes, just to add it, but if you come back to us through the snow, if you've held any of the discretionary, could you come back to us to say if you've been asked to help one? Yes. I thought a fool. Yes, a fool. That would be very helpful. That would be very helpful if you had one, if you had one. That would be very helpful if you had one, if you had one, if you had one. Yes, a fool. Yes, a fool. Yes, a fool. Please, thank you. Please, thank you. But is that waving at me, or is that the one to come in? A phone wave. It's about time. I just wonder—I know you'll be uncomfortable—dysgusting cases, there was the tragic loss of life of a young army cadet in the Western Isles. Would that fall into the category, if you recall, or was there? That was an FAI in relation to that case, but that person was not employed by the military, so that question, that was a discretionary inquiry that came out of different circumstances. We don't need to necessarily bother with the employment status, if we will. I don't know whether we do or not want to do that, Elaine. I just wanted—you'll probably be aware that Patricia Ferguson's proposed member's bill would introduce time limits, which could be flexible for the holding of FAIs. I wonder if you could comment on that, and in doing so maybe give us some sort of indication, because it is a concern that's been raised by families about the sort of average timescales for holding an FAI, and if there are particular reasons why there are delays occurring. If I could say first of all that I share concerns about the length of time that it takes to conclude these sort of investigations and inquiries, and there has been a lot of work done in order to try and shorten those periods without compromise of other things, there are—I'm going to take some time to deal with this question—there are a number of issues that should impose on the timescale. Firstly, the date that the matter or the death comes to the attention of the Crown can sometimes occasionally impact on timescale if it hasn't been immediately. The fact that there may, on many occasions, have to be the consideration of criminal proceedings, and, as I indicated earlier, criminal proceedings will, in the public interest, take precedence over a fatal accident inquiry. That puts time into the length of time. The third aspect is the involvement of other regulatory authorities who have duties to carry out their own investigation and inquiry and are not subject to timescales necessary, but, more importantly, are not subject to the control of the Crown in relation to the ingathering of that information in the way that the police are when the Crown can instruct the police to carry out inquiries. You'll be aware that I did write last year in order to try and ensure that sort of co-operation from AAIB on the Cluthar incident and the First Minister also had to write. The fourth aspect is that most fatal accident inquiries will require expert evidence of some sort. It is frequently medical experts, and it is not for the Crown to set their priorities within their own organisations. In many respects, we are subject to how long before they are going to produce those reports. I am not saying that we do not have a good relationship with experts, but we do, but that all puts time into how long a matter takes. What I indicated earlier was that it is important that, if the legislation controls that time from the point that it is decided to have an inquiry, the Crown has information out there in the form of the charter that I indicated to indicate time scales from the point that the internal time scale of 12 weeks to make a decision on a straightforward matter stops until the final decision is made. The specialists within SFIU over the past three years have been working on the approach of dealing with older cases and trying to ensure that they do not compromise more recent cases of working in tandem. It is one of the reasons why there were so many FAIs last year—there were 68 FAIs last year—which is probably double what there had been in the previous year in order to try to bring all of that forward. I share your concern, the concern of families, and it is something that we are continually actively working on. If the Crown is under pressure with the number of FAIs, do you write them in a priority way? That is why I am looking to see if that is why some FAIs may not be as complex, but there is another big FAI—there is this push further down the timescale. When we are looking at those and when you are getting examples of things that have not been dealt with as effectively or as quickly as they should have been in the past, it was either before the SFIU was set up or two years into SFIU. All the cases were project managed so that we can work on the older ones and your ones to try to compress the timescales and eventually have an acceptable timescale going forward without ever compromising the effectiveness of the investigation. Ultimately, that is what leads to the appropriate recommendations. I think that I was asking prioritising FAIs. I can appreciate that there would be a circumstance where, for reasons that you must stop certain things happening PDQ by making certain statements about what has happened—I think that you illustrated earlier when changes are made, perhaps more in FAIs getting off the ground or during it—how do you prioritise because it may be that some slip further down takes longer, not because they are complex but because more complex and more urgent ones go further up the pecking order? That has not been the experience in relation to project managing the FAIs going forward. The last one that I want to ask because nobody has asked it is what circumstances do you think trade unions should be included in the list of those that are automatically allowed to participate in an FAI? What would be the circumstances and is that what you do? Does the trade unions put that to us? The bill has within it being at the sheriff's discretion that a person has an interest in the inquiry. I think that that covers those areas where they would have a specific interest. There is no role for the Crown in setting up which you recommend, which witnesses you want to come forward to elicit the evidence in the inquiry. There is not a circumstance where we have to have somebody from the trade unions. That would be a matter for the sheriff. No, if there was a particular set of circumstances where it was important as part of the investigation that information was sought from the trade union, I would expect that to be done. I will be frank, I cannot off the top of my head at the moment think of one. Usually the experience is that the trade union involvement is ensuring representation for certain people who are going to be represented at the inquiry. I will leave it at that because it was just one that had not been asked, I know that there are so many trade unions, but I thank you very much for your evidence. I am going to suspend for five minutes. We are back. We are now on to our second panel witnesses and we have Paul Wheelhouse Minister for Community Safety and Legal Affairs and Scottish Government officials Hamish Goodall and Marisa Strutt, both policy officers, civil law and legal system division, and Greed Walker's sister, directorate for legal services. Good morning. I believe that you wish to make an opening statement unlike the cabinet secretary. I do not want to put pressure on you. If you are pressed, we are thinking here. No, no, no. I would not want to curtail you there, just go ahead. That would be helpful. Thank you for the opportunity to address the committee. We believe that it is right that the system of fatal accident inquiries was reviewed by Lord Cullen to ensure that it provides an effective and practical system of judicial inquiry into death in the public interest and that the legislation should now be updated to be fit for the 21st century. The dean of the faculty has given evidence to the committee that he believes that the bill will modernise the system of FEIs. Lord Cullen made 36 recommendations for reform of the FEI system. Some of those were addressed to the Crown Office and Procurator Fiscal Service and have already been implemented by the establishment of the Scottish Fatalities Investigation Unit. A consultation was carried out by the Scottish Government on the legislative proposals to build on the changes that have already been made by the Crown Office and to further consider some of the main areas that are identified as requiring attention. For example, 74 per cent of consultees agreed that the aim of independent investigation into the death of a person subject to compulsory detention by a public authority should be met by independent investigation by the Procurator Fiscal and exercise of the Lord Advocate's discretion on completion of that investigation. 80 per cent of those who responded agreed with Lord Cullen that mandatory timescales for the opening of an FEI are not practical or realistic due to the diversity and complexity of FEIs. The bill takes forward the principle of Lord Cullen's recommendation for requiring responses to sheriff's recommendations. The chief executive of the Scottish Courts and Tribunal service has acknowledged to the committee that it is logical and transparent that responses to recommendations should be posted on the SCTS website, since sheriff's recommendations are already available there. The Scottish Government considers that proposals to be a proportionate and transparent way of ensuring that recommendations are taken seriously, which was echoed by the Dean of the Faculty when he said that the policy strikes the right balance. Section 26 of the bill ensures that a sheriff's determination will be disseminated not only to any person whom the sheriff is addressing a recommendation but also to any person, other person who has an interest in the recommendation, which will obviously include regulatory, professional and trade bodies. The bill will also build on Lord Cullen's recommendations, implemented by the Crown Office, to make the system more efficient, for example by greater use of preliminary hearings and other procedural measures. The Lord President suggested that, as much evidence as possible should be in writing, and the bill provides for the agreement in writing of non-controversial evidence by the participants. It will permit more flexible location and accommodation arrangements for FEIs, which may permit FEIs to take place quicker than waiting for court capacity to become available. It will permit discretionary FEIs into deaths of Scots abroad. It will ensure that FEIs remain inquisitorial fact-finding hearings as set out in section 1, 3 and 4 of the bill to which the Lord President drew attention. It will permit FEIs to be reopened if new evidence arises or if the evidence is so substantial to permit a completely new inquiry to be held. Finally, I would like to reflect on some aspects of the evidence that the committee has heard or received and look forward to seeing your own stage 1 report. Will you be happy to answer any questions that the committee may have? Let's hope that your happiness continues, Minister. Who is going first? I'm looking to my left for a change, but there is no movement over there, so it's Rod. Thank you. Then Christian, then Elaine. Now I'm looking to my left and there's still no movement. Yes, there is. Jane, right. Okay, so we've got four. Rod, Christian, Elaine and Jane. Thank you. Morning, Minister. Could I perhaps just kick off with a question about deaths of people who are compulsory detained for mental health reasons? The policy memorandum details the graduated skill of investigations which the Royal College of Psychiatrists operates under paragraphs 116 and 117. We've heard from a large number of witnesses with concerns about the human rights aspect of that and we heard from the Scottish Human Rights Commission and indeed from the Mental Welfare Commission itself that they had concerns that article 2 requirements are missing from the graduated school of investigations. Is there anything that you can add to reassure people about the human rights implications of continuing as we are? It's obviously a really important point. Such deaths are clearly already subject to and Rod Campbell mentioned the Mental Welfare Commission and others and who have a role in this. The already subject of investigation by the Procurator Fiscal and the Lord Advocate has discretionary power to hold an FEI into such deaths when it's considered to be in the public interest. As I said in my opening remarks, 74 per cent of respondents to consultation favoured the retention of the investigation by the Procurator Fiscal and the exercise of discretion by the Lord Advocate on completion of the investigation to instruct an FEI if he thinks that one is required. We're aware that the Lord President also agreed that the current discretionary power is sufficient and he said and I quote him here. I think that we're in danger of imposing unnecessary rigidity on the system, the system by which the crowd makes investigations and informed judgments is, I think, the best model, but I do take on board the serious concerns that people have about human rights when someone is taken into a setting that is not a normal setting that we have to remember, whether it's in a facility such as Carstairs or, more commonly, in a facility that is dealing with their mental health issues, maybe sectioned under the Mental Health Act. There is largely a medical environment there in the latter grouping. We are satisfied that there are triggers, if you like, for the Mental Welfare Commission to flag up any patterns that they see as being of concern to them in terms of the deaths of individuals in those settings, or indeed the crime itself can raise a criminal investigation if we believe that something of that nature has happened. However, we certainly recognise the concern that has been expressed by a number of witnesses and committee members about ensuring that inquiries are held when it's justifiable in those circumstances, but we don't believe that mandatory FEIs in every case should be held. I accept that minister. Can I just perhaps refer you to paragraph 117 of the policy memorandum in which you say that, in various inquiries and investigations, there is a case for them to be formalised and rationalised, although not necessarily in legislation? The Scottish Government does not have a belief that this bill is a vehicle for this. Is there anything that you want to add to that? I do accept that perhaps there may be a degree of improving the clarity of what procedures are in place and certainly the role of different agencies in terms of flagging up any concerns about a death that has occurred in a mental health case, and perhaps it would be possible to make clear the flow diagram of how the system works, so that people are families and those who are affected are aware of it. However, I am aware of stakeholders who have called for mandatory inquiries in such situations. I would hope that they would accept that not every case is a family that wants an inquiry to be held. Often it can be quite apparent what has caused the death of individual. It could be natural causes entirely logically in a situation where people are just as vulnerable to diseases as those who are outside those settings. I do think that we have to have a flexible system that is adaptable. Clearly, if the committee are concerned that there is lack of clarity as to how the system works in practice, that is something that we could certainly address. If that is the point that Mr Campbell is trying to raise, I might have looked for guidance from him if I have understood his point correctly. I will move on to some of the written submission from the equality and human rights commission where it says that the current system is confusing, e.g. crown guidance to medical practitioners specifies that deaths in legal custody should be notified but does not specify that deaths under mental health detention should be notified. There is a separate system of notification for health improvements in Scotland and a local case review for clinical services. It touches on some of the problems in the existing system, where the clearer guidance would clearly be helpful. Certainly, that is a fair point. If those at the sharp end in the sector are concerned that they do not have clarity of the procedures and the guidelines, that is something that they could certainly take away from today and come back to the committee convener if that would be helpful. However, our intention is to avoid managed inquiries, but I accept that, where people need to know what sufficient triggers there would be to call for an inquiry and how the Lord Advocate would exercise discretion if it came to that. If there are weaknesses in terms of the guidelines, I would be happy to look at any that the committee would flag up. Obviously, I am just looking for reassurance from the minister that, even if we accept that it is not a case for mandatory inquiries, we need to ensure that looking at the discretionary system, for want of a better word, and the add-ons are compliant with article 2. I certainly take that point from Mr Campbell. We need to reflect if there are any gaps in guidelines that raise concerns about human rights, but I would hope that we would be able to come back to the committee with any concerns that you raise in your stage 1 report. I would like to see the detail of the evidence that you have received from witnesses and if there are specifics to address them, if we can. I take the point that Mr Campbell makes. On mandatory inquiries and specifics, I would like to take the minister to section 2, section 4b, which I raised with the slister general. That is the death of a person who is within the subsection, if at the time of death a person was subsection b, a child required to be kept or detained in secure accommodation. Does the minister advise me that that means that they are literally within the secure accommodation, or is it simply the status of the child? That is something that I could perhaps bring in. Do you mean that they are actually within a building? It says that a child required to be kept or detained in secure accommodation is required. Does that mean that they are literally within secure accommodation? Does that mean that the status of the child is such, notwithstanding where they are, that the status has said that they have to be kept for the own protection of the protection of society and secure accommodation? They would be within the secure accommodation, that is when it would apply. Is there a flaw there that, for a child who is no longer and is just out of the secure accommodation for a matter of hours or something like that, and they die? Should there not be a mandatory inquiry there, whether there may very well be reasons why they should not have been out after all the states in charge? I sat in on the last evidence session and the words required to appear a few times in the section 2. The intention in drafting the bill to take, for example, the example of a prisoner, would be that, if they are being taken out on a day trip or if they are off to hospital, they are required to be detained. They are not at liberty even if they are outside the prison walls, so the intention in all those cases, including secure accommodation, is that it does not literally mean within the building. However, if there is any feeling that there is any lack of clarity there, we as a bill team will certainly take that away and reflect on it. I think that there is, because I have had to ask it, and the very thing is, are they within or outwith? The other part in that same section is 5B. I do not know—it is for the purpose of persons in legal custody of the person and there is a list. I do not know of the top of my head what section 56 of the Criminal Justice Scotland Act 2015 says. Does that mean that you could be in custody but not necessarily within a premises, the rest are all premises, but say that you have been arrested on the street and the police are taking you into custody? Is that what that means? The purpose of that provision is to widen the scope of where the mandatory fatal accident inquiry would apply. We are not just talking about someone who dies in a police cell or in a police station. If they have been arrested at a football match or in the street and then they suddenly die, that would trigger a mandatory fatal accident. Is that what section 56 says? I do not know if that is what that says, because the rest are all places. For the purposes of that, it does not matter whether the death occurred in secure accommodation or people institution or the case may be service custody premises. Does that take care of my two problems with the children in secure accommodation and somebody out in the street perhaps under the rest of the police who dies? Does that take care of that? It certainly takes care of the one in relation to police custody. This amendment was made to the legislation at the request of—Lord Cullen recommended it—but it was at the request of the Association of Chief Constables in Scotland. They pointed out that there was a slight discrepancy in the law. Under the existing legislation, it only applied to police cells and police stations, but that widens it so that it is in police custody outwith police stations. However, it also says that the purposes of subsection 4b, which is the one that I have been born about, is secure accommodation. It then says that it does not matter whether the death occurred in secure accommodation or people institution or the case may be service. That does not cure the first issue, which is the child who may be out and about. I think that Greg is probably a convener for me to help the committee's understanding of it. Two points on that exchange. Where it refers to the Criminal Justice Act 2015, that is the bill that this committee will have been scrutinising. It is contingent in that. We are scrutinising an awful lot. You will need to remind me where that is. First, if that act becomes enacted, then, as Hamish describes, the intention is for it to cover roadside detention and such like. The subsection 6, which has just been brought up, is supportive of my interpretation, which was the bill team's interpretation, that it does not literally mean within the secure accommodation wing, within the prison. It includes them out on a day trip or on the way to hospital or whatnot. However, as I have said, the bill team will consider all the points on drafting if the committee feels there is— It may cure it. Do you think that it does? Personally, but we will reflect on that. Yes, that is fine. You have sorted that out for me. I think that just to clarify, it will cover prisoner transport as well, convener, if that is of any use as well, in terms of the understanding. I have followed that, but it was a bit about the secure accommodation. It seems to also deal with that. If the child was out with the secure accommodation, it does not matter. They are still under the control of the state for the protection of the bubbling, so that might cure it. Yes, thank you. So, I am happy now. I do not want to know any more about this. It is Christian, Elaine and Jane. Thank you very much, convener, and good afternoon. First of all, I would like to ask the question about a surprise for the committee members that the service personnel's armed forces were not employees, which we found very difficult to accept, but we have got the letter now from the cross-officer and particular fiscal service, which explains the detail of what it is. Is there not a way that you could draft the bill differently to try to include the service personnel better? Certainly, I am happy to address that point, convener. I must admit that I have to confess that Mr Allard's point, I was also surprised, but I appreciate that it represents long-standing legislative provisions in terms of service personnel, but the issue of FEIs in today's service personnel in Scotland was not raised in Lord Cullen's review or during the consultation on the letters of proposal last year, which is why it is not dealt with in the way that Mr Allard is looking for in the current bill. That is a new issue that we have had to consider in light of representations that should be made to the committee and, indeed, outwith this committee from Mr Angus Robertson, as well as MP for Murray. Given the defence reservation, any change to the law would have to be achieved by means of a section 104 order, which is already in contemplation for the bill and, therefore, agreed by the UK Government. We have had some initial informal discussion with the MOD about that, and we believe that there may be some room for further discussion on the issue to try to increase the scope and bring the service personnel in Scotland into the scope of the bill. We will be writing to the MOD after this committee session to make that point to them and to invite them to give their view to be fair to them rather than rely on informal discussions, which my officials have had to give them a formal chance to respond and see what scope there is to do that. However, I certainly recognise the point that Mr Allard has made, and I would be happy to come back to the committee as soon as we have a formal position from the Ministry of Defence as to whether they are willing to allow that under section 104 order. Thank you very much, but it would be very helpful. When would the timescale be bearing in mind that we have got stage 2 after the summer recess? We will get a letter off as soon as we can, convener, before the summer recess, and I hope that the MOD comes back in time for the stage 2 process and committee. You are not going to—you are still on military personnel. Jane, you want to come in on that. We have had some discussion around this topic in the previous evidence session, so now I am confused, convener, and I am going to ask the minister to confirm that. Do you think that the wording in the bill, section 2 subsection 3, is wide enough to encompass service personnel and other Crown Servants? Are you now saying that it isn't? I mean, I mean, we can maybe invite Mr Goodall to come in after I've completed speaking, but just to say that we believe that because this is a new issue, we haven't addressed it in the bill as it stands, that because it's a reserved issue, we will need UK Government consent for a section 104 order. We are happy to look at an amendment potentially if the UK Ministry of Defence is happy for us to proceed in the base of a section 104 order in due course that we can look at amending the bill at stage 2. That's the way of the plan, but maybe it's okay if the committee has got anything to add. I don't think there's anything I can add to that. I mean, the defence reservation is clear, therefore, if this is going to be affected, it would have to be done by means of a section 104 order, and we'll need to under the Scotland Act 1998. Can you explain a detail of section 104 order? Miles, Mr Walker, the buck gets past to you a great deal of the time. I hope he's buying the buns later. The section 104 orders are quite common for the more complicated bills and essentially they're for consequential things that are within the policy intentions of the bill, but for technical reasons the Parliament doesn't have the competence to deal with itself. Just two related points. There hasn't been an intention on the bill team to change the meaning of the wording that appears in the 1976 act. It's a slightly different form of words, but the intention wasn't to change, and of course this issue about military employment has come up very lately, so we'll reflect on all of that. Another point worth mentioning is that there is the section 7 in the bill about service dress abroad, and the reason that can appear, even though elements of it relate to a reserved matter, is because it's simply restating existing law, so it's a slightly clunky picture, but that's why we've ended up— That's discretionary. We understand that bit. It's the mandatory. Would there be unintended consequences, of course, if you were for the MOD, in particular, but if you start within legislation to treat our personnel's employees, then you open up to a whole lot of other issues within the law of the status of them within employment tribunals and so on, and rights of employees and everything else? Indeed, and that's one of the things that we need to consult with MOD on. As I say informally, there's been a willingness to discuss the issue, and there are certainly no doors being closed in us so far. It could be restricted just for the purposes of a fatal accident inquiry, service personnel will be treated as an employee, but it could be done. I think that we will obviously have to be very careful with the drafting that we don't undermine, as you say, existing provisions elsewhere, but if we can work with the MOD to find a suitable fix to this, we will certainly try to do so and keep the committee informed of progress on that. I think that we're quite interested in that, are we, on the committee? It's quite interested in that status. Always interested in fixes. Always interested in fixes, he says. That's an advocate for you. Yes indeed. The owner of the advocates, Elaine followed by Jane. You're finished, you're not finished. You had another one, okay. A note, or a note. Just 1976, text was amended with the O, the word O was not placed as the same place. You put the O in section B, employment or occupation when, on the act of 1976, he said, because of his employer, O being employer who self-employed person was engaged in his occupation as such, which changed a little bit the centre, but I wouldn't want you to go back to 1976. To the contrary, I thought it was an improvement. We'll certainly reflect on all these points. Thank you very much. My second question was about deaf abroad, and we had a lot of people coming in front of us telling us, but there are no problem whatsoever that there would be an amendment regarding the fact that we need the body to be brought back to Scotland for it to be a fatal inquiry. Would the Government be willing to move on that point? I certainly recognise this issue. I've had the honour of meeting some of the parents, Mr Mrs Beverage, who lost her son, Blair Jordan. I'm very grateful for them explaining the process from their point of view and the weaknesses here, but I do recognise in this situation that Blair's body was obviously found. Clearly, there are circumstances in which the body may not be found, and it is a very difficult issue for us to address, but to address that point, the issue of the requirement that a body should be repatriated has been raised here at the committee. Having had a look at it, the requirement that the body should be repatriated was not challenged during the Government's consultation, which is why we've not addressed the issue in the bill to date. I did in consultees, including those abroad, who are not alone, who gave evidence to the committee. I believe that they seem to want to have a system like coroners' inquests in the south, where an inquest is only held if the body has returned, in this case, to Scotland. We can consider this again, but the Crown Office believes that, if there is to be no examination of the body, it may be very difficult in practice to produce evidence in court that provides a satisfactory explanation of the causes of death, so we have to recognise that there is a limitation in certain cases of not having the body in there for the limit that that would place on the value added by a fatal accident inquiry. The reason that the Crown Office would wish to have a body repatriated to the country is that there is no guarantee that, had there been a proper examination of the courts, a proper determination of the causes of death would have occurred abroad, and the body would have been disposed of and not repatriated. Indeed, the difficulty, though, is for the authorities here. If we have a situation where a death is being reported abroad and the investigation is being conducted abroad, any physical evidence is there for abroad. We have no body in which to conduct a postmortem for toxicology or for some other reason to explain perhaps what may have happened in these circumstances. It limits the ability of the FEI to add any value. The absence of the body and the absence of pathology and toxicological tests, there is no way of knowing whether an individual was intoxicated or affected by drugs or alcohol that may have played a part in their death. It may still remain undetermined, albeit there may be circumstances that might be presented and have indeed asked officials circumstances if, in the instance where Blair died or another child had died and fallen overboard and had been witnessed, someone falling overboard, the body hadn't been found what we would be doing in those circumstances. I'm happy that we have a look at that and see if there's anything we can do to address the issue, but I'm just raising some limitations on what that may yet mean for the outcome in terms of an FEI and whether there would be any value added. It will still be at the discretion of the Lord Advocate, and he may have to take a decision that it would add value to the family or anyone else without the presence of a body. I'm not sure if Hamish could come in. I know he's looked at this very closely. There are additional problems in that if someone simply goes missing in a foreign country, would that trigger a fatal accident inquiry? It does occasionally happen that people seek to fake their own deaths. Again, I don't think that a fatal accident inquiry would be appropriate in those cases. There are undoubtedly circumstances where there can be no doubt that a death has occurred, and it may be because of the kind of accident that the body may not simply exist anymore. It's exactly as a body working. Exceptional circumstances to be very clear, but it's what people are asking for. I do have to go missing because it says that it's got to be a sudden, suspicious or unexplained or a current circumstance that's giving rise to serious public concern. It wouldn't just be if they went missing. I think that we remember that the Lord Advocate in this situation would have discretion as he would anyway with the situation when the body was impatriated. There may be a case for investigation, but we have to be realistic about what that might be able to yield with the absence of the body. It will limit inevitably the scope of the investigation back home because the physical evidence of the body is very helpful in determining the cause of death. If time permits, I'll bring Greg Walker in. He has some expertise in that. We've been missing you, Mr Walker. It's your tub again. Deaths at sea and indeed deaths in the North Sea in terms of the offshore sector where similar issues can arise, and it may be helpful. I think that for Christian was also thinking of fishing vessel, something like that, and it's not in Scottish Territorial Waters. The body can't be retrieved. It's a point that hasn't come out in evidence yet, which is about section 5, which is really about the North Sea oil and gas area. You'll see there that, unlike section 7, there's no requirement for repatriation. That's just continuing the 1976 act. Just to make the committee aware that, if heaven forbid, there was a North Sea accident where the bodies couldn't be recovered, that wouldn't, under the current law, preclude an FAI. I imagine the distinguishing factors from a broader broader. You're dealing with an area of Scots law. You're dealing with eyewitnesses who speak in English, who can speak the fiscal and so on. It's quite different from being in an oil operation on the other side of the world. On the other hand, having reformed the law if this goes through, you wouldn't want to have a circumstance where there's a death abroad that fulfills all the criteria as to whether or not the Crown should have an FAI, but just simply because there's no body, you could still establish the cause of death and have an inquiry into it. You wouldn't want to be in that position. It might be very rare, but that's the things that the law tends to throw up, the unexpected, when you think you've got everything absolutely in place. I agree, convener. I suppose that's why, because I'd heard so much testimony from Mr and Mrs Beverage about Blair's case, it sprung to mind that there could be a situation where, again, a British Registered vessel, so that there's a good prospect of getting co-operation from the company involved, which we probably would have had in that situation, and that there was an unexplained death. In this case, if somebody had perhaps seen, at least an eyewitness, or heard a splash, or heard someone shouting as they fell overboard, or something like that, you might have had reason to believe that it happened, that would allow you to understand that a death had occurred, or most likely to have occurred, and then perhaps it would be worth investigating how that death had occurred in terms of the nature of the incident that led to the individual falling overboard. We are flexible, and we will look to see what we can do. We just want to be realistic with the committee and not give false expectations that it would automatically lead to an explanation as to the death. It's going to be far more difficult without the body, unfortunately. Elaine Fuller by Jane Neill. In your opening statement, minister, you gave some indication as to why you thought that the sheriff's recommendation should be published on the SCTS website, rather than on the Scottish Government's own website. Would you expect SCTS to have to monitor compliance with the sheriff's recommendations? We certainly—I made the point in my opening remarks, and I firmly believe that it would be advantageous for SCTS to publish the response to the sheriff's recommendations. I don't want to overstate the point, but it probably gives more credibility to the whole process if the sheriff is giving recommendations and then people responding to the sheriff as to whether they are or are not going to be taking forward those recommendations, and why not in the case of not taking them forward. That helps the process. In terms of the point that you make about the monitoring of those recommendations, it probably would be the case that it would be a resource issue that I suppose that the SCTS would face in terms of monitoring them. Section 26 of the bill provides for the dissemination of the sheriff's determination to each person to whom a recommendation is addressed, and any other person whom the sheriff considers has an interest in the recommendation, and that could include any regulatory body with power to implement change, possibly on a UK-wide basis. I would hope that, if it had implications for health and safety, or if it had implications for environmental issues, the regulatory bodies would be monitoring the performance of the person or persons to whom the recommendation would be made, as they took forward the steps that were recommended by the sheriff. In some way, shape or form, an irrelevant organisation or body would monitor progress. However, as a whole, I think that the issue that you might be getting at as to whether SCTS should be monitoring the performance overall of the recommendation that it made as to how many of them are or followed through. I do not think that that would be realistic for us to expect SCTS to do that within their resource. In that case, would you, for invisible to the Lord Advocate or possibly ourselves as Scottish ministers, have an oversight role? Well, I think that the difficulty in relation to the Government or indeed the Lord Advocate as the SCTS is doing that is that there is no policy intention in the bill to monitor recommendations centrally. Each set of recommendations is in respect to an individual inquiry and is particular to that situation, albeit if recommendations are then disseminated to a regulated body, they probably have wider implications, which are being flagged up to that regulatory body. I would hope that they are addressed at that point by that body rather than by the Lord Advocate having to push the case or indeed myself or another minister. But clearly we would have an interest in anything that had implications for Scottish Government policy and indeed it is possible that the sheriff may disseminate recommendations to the Scottish Government where it is relevant to do so or did UK Government. We would have an interest at that point. I do not know if Elaine McLean finished that point. No, I was not completely. No, do you need to proceed and barge in? You know that the British Ferguson proposed that the sheriff's recommendations would be legally binding. I understand from the explanatory note why ministers have rejected that offer that you have chosen to reject that. Would you be prepared to consider legal sanctions against those who fail to respond to a sheriff's recommendations, a sort of contempt of court type of process? I do not believe that that would be helpful. I will try to explain why. I am happy to look at the issue, but what we are trying to have is an inquisitorial inquiry and to get as much help from all the parties involved who may have a role in helping us to understand how someone has died in the circumstances and what lessons we can learn and the more that we can create potential for it to be seen as threatening for those bodies to be involved or to engage with it, it might be potentially undermined the process of trying to get to the truth. I take the point clearly that if there was something that had potential to save lives, I would hope that that would be flagged up to the health and safety executive, to the Scottish Government, to the UK Government as necessary and that we as legislators can take forward something. If it is as fundamental as that, whichever appropriate Government or agency could then regulate to ensure that that happens more widely. That is one of the reasons why it is useful to disseminate sheriff's recommendations to the regulators to ensure that they take on board those messages and make sure that regulation is kept up to date with evidence of potential dangers to people at work. I would hope that we could achieve the outcome that Dr Murray wants but without having to have a threat in terms of the legal sanction for anybody failing to deliver on the recommendations. Your principal concern is that legal sanction would make the process more adversarial? We are certainly trying to avoid it becoming adversarial and to get to a situation where everyone has to be tooled up with lawyers to take part in an inquiry. Clearly, there are circumstances where lawyers need to be present and maybe to act on behalf of families if they need someone to advocate their concerns or raise their questions. Equally, we do not want it to become a gladiatorial or adversarial environment. We want people to be able to speak freely and get to the truth as to what happened to that individual or individuals and to answer why they died and how they died and what could be done to prevent it happening again. I think that the less legalistic we can keep it, the better in that respect, albeit that we have a sheriff overseeing the process and clearly using their legal knowledge to ensure that it is conducted fairly and with rigor. However, we want to avoid situation where it is seen as being a challenging setting in that sense and that people close up the doors and bring down the shutters and do not want to participate. In terms of the consultation responses on that point, maybe Hamish might be aware of that. There was fairly strong support for the proposals in the Government's bill, which is basically that a party to whom a recommendation is addressed is obliged to respond. They do not have to comply with the sheriff's recommendation, which, after all, is only a recommendation. It does not bestow rights and obligations. They have to respond saying what they have done in relation to compliance, what they intend to do or if they are not going to comply, then they have to say why they are not going to comply. If they do not respond at all, that fact will be noted beside the sheriff's determination on the SCTS website, but that is as far as we think we can go. That will become public knowledge that our body has not responded. The Crown Office tells us, however, that in the vast majority of cases, those people to whom recommendations are addressed tend to take them very seriously indeed. I would suggest that it is unlikely that there will be many instances in which parties choose not to respond at all. Dr Murray's benefit is that we are trying to arrive at a situation in which we do not want sheriffs to feel that they should be reluctant about making recommendations because they might be too onerous or too difficult for the organisation to respond to. If we allow the sheriffs freedom, in their best judgment, to recommend what they think in the future would be helpful to avoid a similar situation arising, that gives them maximum scope to make their points and, hopefully, the organisations can respond in the manner that Hemish Goodall has set out either positively and that they have taken forward the recommendations, or if it is not practical to do so for some reason, or if it is economically infeasible to do it, they can respond as to why that is the case and to help to inform the process. That may in turn help to inform the regulators as to what realistic and what is practical for that company or sector or even to do across the board. I hope that it will keep the information flow going. Even if there is a negative response, it might be useful information that might be used by regulators or others to inform future policy. Mr Tom Marshall, in his evidence on 19 May, called for recommendations to be made to the sheriff rather than to the SCTS as a way of keeping the inquiry process open. I am sure whether you have fully touched on that. One of the other things he put forward in his written submission dated 22nd is that the Justice Committee itself could monitor recommendations and responses as part of the Parliament's policy of assessing the effectiveness of legislation. Can you comment on both of those points? I do not want to determine the role of the Justice Committee. I think that, as for the Justice Committee, to determine what is the appropriate role for the committee in this respect. The point regarding reporting is an important one. Since Roderick Campbell mentioned Tom Marshall, I would like to make the point convener that Tom Marshall himself said that it is unrealistic to have a mandatory inquiry in every case of industrial disease. He has also made points that are very supportive in terms of the reporting process. I think that it is important that we have some scrutiny of the individual decisions that are made by companies or organisations and respond to sheriff recommendations. I do not necessarily—my personal view is that it would not necessarily be appropriate for the Justice Committee to do so, but if the Justice Committee felt that it had a role, I would not prevent that. Post-legis of scrutiny is a very important function of the Parliament and perhaps something that we should do more of. The sheriff's role is finished after the determination, and that is on the basis that it would probably be time-consuming for the sheriff's to continue to oversee the process of recommendations coming back and perhaps be inappropriate for them to do so when they are having to take on other cases. However, as Hamish Goodall has said, if information is presented that suggests why an organisation has not been able to take forward a recommendation, then that is open to regulators and others, including those who are concerned about the practices in that organisation to flag that up. There is a reputational issue there, so I would hope that the process would be effective in driving change within those organisations to whom recommendations were made. It would not necessarily be appropriate for sheriffs to continue the role after that point, which is after all a judicial function rather than a monitoring and evaluation function in that respect. I understand that you might not have seen that response. Is it just come to us this morning, Minister? Is that correct? I haven't seen that myself, I could be sure. Sorry, I was just a bit distracted there to see whether responses had to be published, but they do under section 275A, which would be important now. Who have I got now? Jane, thank you. I'd like to ask a little bit about delays. Whether you think, Minister, that this concept of an early hearing, as proposed by Lord Cullen, would help to speed up proceedings, if you think that that would be a positive impact on the process? I certainly recognise the point that Jane Baxter is making about the need to avoid unnecessary delays. The whole bill is designed to make the process more efficient and effective in delivering an FEI and clearly anything that we can do to smooth the process and make sure that it happens as effective as possible is helpful. I wasn't present for the solicitor general's evidence. I've been made aware of the point that was made regarding a milestone charter. I think that that's a constructive suggestion, which, obviously, the solicitor general is going to come back to the committee with more detail and understand on that. That, in a sense, will help to ensure that, at a three-month interval, the solicitor general is referring to that there would be reviewed by the current office itself of where they are at with the inquiry, what needs to be done in terms of making sure that it happens and to ensure that there is a minimum delay in the process. I think that that's a very constructive suggestion. I would hope to largely deal with the intent behind Lord Cullen's recommendations in that respect. It's also worth stating just for the record that the Crown Office has made significant efforts in recent years to keep families themselves better informed about the progress of death investigations. We don't believe that there is a need to hold such hearings in every case, which is what Lord Cullen has suggested. The Lord President made a valid point, and he said that it is not like the court to put in a position of exercising some supervisory role over the Crown's decision-making process as that would give rise to a serious constitutional issue. I think that, if I stop the answer, we did hear the Crown this morning saying that they were bringing forward a charter to bring before the committee, before stage 2, which should be helpful. I believe that that will—I mean, it's a very positive move by the solicitor general, and I think that it will help to deal with the intent, I imagine, of committee members to make sure that families are well informed and that everything is done to bring forward the inquiry as quickly as it can be. The flexibility in the accommodation should also help in that respect, I believe. Just lastly, do you think that COPFS is adequately resourced to take on these not new roles but enhancements to the role? Do you think that that will become a resource implication as time goes on? Clearly, I would hope that any problems that are raised by the Crown Office in terms of resourcing of that would be raised at the justice board and would be dealt with at that level, and recommendations would come forward by any change that is necessary. However, I believe that it is an efficiency measure that it will help in terms of the proposal that the solicitor general has brought forward will help to ensure that there is good co-ordination of the commencement of an inquiry that minimises any risks of potentially unnecessary costs by delays or any problems in the initial process. That, in a sense, could be seen to be prevented of spending in some ways so that it will make sure that the inquiry happens more smoothly and the appropriate location and resource appropriately. I would hope that it would not be particularly onerous on the Crown Office, but clearly if there are issues as the legislation is applied, we would keep that under close watch and the help, if necessary, with the Crown Office. Just to raise the point that the Crown Office is obviously aware of the bill, it has looked at the financial memorandum and are comfortable with the figures in there. The committee has currently got in front of it a couple of active petitions relating to how the COPFS carries out death investigations. Have you given any consideration to whether there is scope for introducing a review process that families can use if they are unhappy about the way in which that death investigation has been carried out? I will certainly be happy to take on board any points that are made in specific concerns in that respect. We have obviously seen the Crown Office bring in family liaison positions. It is obviously a local sheriffdom to the extent to which they are deployed. It may vary from one ear to another, so we would like to see and ensure that there is consistency in that process. However, the judicial review is the due legal process available in those situations. We can certainly address that in due course, perhaps once we have a chance to reflect on the evidence that the committee has received. Will you perhaps, as part of that reflection, consider whether or not it would be appropriate for a sheriff to be invited to, I suppose, adjudicate on whether it was appropriate that the investigation had been closed? Greg, are you happy to address that point? If I may convener, he is earning his cross today, as you can see. We are missing you already, Mr Walker. I think that there are two points that use the word scope. This is a bill about inquiries, and it is not a bill about the investigation stage. Perhaps the charter that will be published can address those sorts of points, but I would suggest that it is not for this particular bill. On the point about a sheriff having a greater role, I think that that is squarely in the territory of the Lord President's concerns about constitutionality, the Scottish tradition in which we heard pre-date. The coroners are to have the discretion to investigate deaths, and to have a sheriff review that is something that the judges are not comfortable with. As the minister said, although I would not encourage that to happen routinely, crown decisions can be judicially reviewed under the ordinary grounds for judicial review. That is the final one. That is just about regard back to families. Minister, do not expect you to pull the rabbit out of the hatch just now. If you could provide the committee with the costs to the legal aid fund of supporting families at FAIs in the past three years, there are issues involved in, obviously, the FAIs and the public interest, but families obviously have a great interest themselves in what takes place and quite often require legal aid representation. It would be helpful to know that, or any other comment that you might wish to make about legal aid to families? I agree, convener, that that is an important issue, because while the inquiry is there to establish in the public interest what has happened to individual individuals and to find the cause of death and to learn lessons and to disseminate those lessons and recommendations, we recognise the important role that the inquiry is playing. It is not the statutory purpose, but it is there and it provides a very helpful service to families to help them to understand what happened to a loved one. In many cases, they may require to raise some questions themselves. The role of the legal aid board, which is making legal aid available, where a person entitled to be represented at an FAI can show that they have concerns about what a procurator of fiscal is not going to raise at the inquiry themselves, because, obviously, a procurator of fiscal has a specific role and is acting for the public interest at that point. Any application for legal aid will be subject to the usual three statutory— I know all that stuff. Sorry, minister. Time presses on, but Lord Cullin's recommendations were that you were not going ahead with legal aid from the cost grounds. If you wanted to spell that, we need to know what has been given in the last three years and why. I know the tests are about reasonableness, but those are very different circumstances being in a civil case. We will certainly look at the figures that you have asked for, convener, in terms of trying to provide them for the committee's benefit. The Scottish Human Rights Commission acknowledged in its own evidence before the committee that there was no ECHR issue with the current provision of legal aid for FAIs. We certainly have not seen any changes in circumstances that would cause the Scottish Government to visit its attitude to the provision of legal aid for FAIs. However, as you know, convener, we are doing work on legal aid at the moment anyway, so I will certainly take that into the remit of that work and look at it if there is any scope. That is the kind of sweeping up questions. One is, again, that the bill removes the sheriff's power to award expenses. Why, when there might be somebody abusing process and one would feel that expenses should be awarded against them for costing the court and everybody else's time and money? If I can ask Hamish to address that. Please. Expenses are awarded in civil litigation. A fatal accident inquiry is not civil litigation. We believe that if someone is behaving vexatiously at a fatal accident inquiry, we believe that the sheriff has sufficient case management powers to be able to deal with that without any award of expenses. Against him? Is that not the case just now? Can he not award if he has got vexatious? I believe that. There was one case recently. So you are changing the position. That is why I am saying why. Because we do not feel that it is appropriate, because, as I say, expenses are awarded in civil litigation, this is not civil litigation. Greg, do you want to? There is a wider picture in the background, which is a courts reform act, where the civil courts review was moving to all the civil courts with all their hats on much more actively managing cases. The power to make court rules has been expanded and the power here for FAI rules to be made by the Lord President is again expanded with the expectation that much more than has happened to date there will be active case management at all stages. So I suppose what we are saying is rather than letting parties get away with murder and then punish them later, the sheriff will, from that outset, be able to stop wastes of time, so there shouldn't be wasted cost expenses on anyone's part. Well, we'll hold you to that if it's not going to be in the bill. I thank you very much for your evidence and conscious of time. If there's anything else, once minister, you have the opportunity to look at the evidence that I've had that you want to comment on, that you've not had the opportunity, and we've not questioned you on from previous witnesses, this morning, please feel free to do so. Thank you very much. I'm moving on to the next item on the agenda. If you're a forgiving minister, I'll just press on. It's item 4, our annual report from 11 May 2014 to 10 May 2015. This is a factual account of the years of work that we've undertaken during that period. Here it is in all its glory. Are you content, John? I think that it's a very good report. I just took two very minor points of a May, and that's on the first paragraph of paragraph 24. I think that if we just refer to the second line, I think that we should insert many significant implications there. Yes, that's all right. Yes, the Febdy's agreed the significant implications that it opt out would have. On one other small point of a May 2, and that is paragraph 32, the final line to her says, they provided witnesses with an opportunity to engage with each other. I think that we should insert engage with the justice committee and each other. Yes, it's rather like we were sitting having cups of tea buns. We were just spectating. That's a sort of more grammatical question. It says the report covers right up the 10th of May 2015. I just thought, to the colleague this morning, we were dealing with six villages now. Is the apology bill where we're not starting to deal with it before? Which one? Yes, we can reflect the Apologies Bill call for evidence. You just want to get the right number on. Yes, so we put the Apologies Bill early stages call for evidence. Thank you. Right, we now move into private session, which is as we are now.