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Chamber and committees

Meeting of the Parliament

Meeting date: Thursday, March 16, 2023


Bail and Release from Custody (Scotland) Bill: Stage 1

The Deputy Presiding Officer (Annabelle Ewing)

The next item of business is a debate on motion S6M-08220, in the name of Keith Brown, on the Bail and Release from Custody (Scotland) Bill at stage 1. I ask those members who wish to speak in the debate to press their request-to-speak buttons, please.


The Cabinet Secretary for Justice and Veterans (Keith Brown)

I am pleased to open this debate on the general principles of the Bail and Release from Custody (Scotland) Bill. I thank the Criminal Justice Committee for its scrutiny of the bill and all those who gave evidence to it. The committee’s report raised a number of important points, which I have addressed in my written response to it.

At the heart of the bill is the aim to reduce crime, to reduce reoffending and to make Scotland safer. The bill will do that by focusing on two critical points in the justice system: the point at which bail decisions are first made by the court, and the point at which people are released from prison.

The bill addresses long-standing concerns about the use of remand. Of course, the use of remand can be necessary. I am clear that it plays an essential part in protecting victims and the wider public, and the bill does not change that. However, we also know that remand can be damaging. For individuals who do not pose a risk to public safety or who do not pose a clear risk to the administration of justice, there must be a better approach.

The reforms to bail law recognise the negative impact of short periods of imprisonment while ensuring that public and victim safety will be central to decision making. They will mean that people are remanded in custody only as a last resort—if they pose a risk to public safety, victim safety or, in certain cases, the delivery of justice. The bill also includes reforms that will better enable reintegration after a period in custody by improving pre-release activity and throughcare support.

I encourage members to support the bill for the following reasons. First, on the use of remand, although prison is obviously necessary for those who pose a risk to public safety, remand removes people from their homes, families, jobs and communities. We must remember that, at that time, those people have not been convicted of any crime—or, at least, of the crime that they have been accused of.

As well as damaging those connections, short periods of imprisonment, including on remand, do not address the underlying causes of offending or support rehabilitation. As Professor Fergus McNeill put it, short periods of imprisonment are

“not a magic box that removes or eliminates risk and keeps us safe”,


“Imprisonment is actually more likely to serve as an incubator of risk”.—[Official Report, Criminal Justice Committee, 11 January 2023; c 23.]

It should therefore be of concern to us all that the number of people who are held on remand remains at a historic high. On 1 February, 29 per cent of the total prison population—2,150 people—were held on remand.

Daniel Johnson (Edinburgh Southern) (Lab)

The cabinet secretary is right. However, that proportion is not just historically high in Scotland but in comparison with other countries. He is right that we need to look at the underlying causes as to why people end up in prison, but do we not also need to look at the underlying reasons as to why Scotland uses remand to such high levels, especially by international comparison?

Keith Brown

Daniel Johnson is absolutely right, and I have made that point a number of times, including to the committee. Why is it higher in Scotland? What is going on that gives us those much higher figures? The bill seeks to address that. I will come on to explaining that more fully.

I entirely agree with the member. Why does Scotland send so many more people to remand than do other jurisdictions? What is the reason for that? The levels in other parts of the United Kingdom are approaching ours in Scotland, but that is a relatively recent development.

At the heart of the bail reforms lies an absolute commitment to public safety and victim safety. The bail proposals will enhance the role of justice social work so that it has more opportunity to inform the courts on bail decision making. That will make consistent the good practice that is already happening. It will also help the courts to have the right information at the right time.

It has been suggested that the enhanced role of justice social work could result in people being remanded for longer than they would be at present, but that is not the case. I will be clear on that. First, the bill does not change the timescale under which a bail decision must be made, which is a period of around 24 hours from the time that the person is first brought before the court.

Secondly, under the bill, the court is not required to have information from justice social work in order to make the initial bail decision. As now, if no information is available from justice social work, the court will simply make its bail decision on the basis of information that it has from the Crown Office and Procurator Fiscal Service and the defence.

Thirdly, beyond the existing 24-hour window for a bail decision to be made, the court cannot choose to refuse bail and remand a person in custody simply because justice social work has indicated that it needs more time to provide the information. That is because there is an overarching legal presumption for bail, which the bill does not change. Therefore, unless there is already a good reason to refuse bail—in which case, a person would be remanded anyway under the current system—the person must be admitted to bail and allowed to stay in the community. The seriousness of the decision to use remand is emphasised by requiring the court to record the grounds on which bail is refused.

The bill is supported by continued investment in community justice, including alternatives to remand. In 2023-24, we will invest a total of £134 million in community justice services.

The bail aspects of the bill seek to answer important questions about the appropriate use of remand in a modern and progressive Scotland, now and in the future. Part 2 of the bill is focused on improving support for people who leave prison.

We know that many people who are in contact with the justice system have already experienced severe and multiple disadvantages, including homelessness, substance misuse and mental ill health. That is especially true of the prison population. Often, imprisonment compounds such issues, which is why holistic, well-planned support for release is so important.

Part 2 of the bill aims to do that in a number of ways. The bill ends scheduled releases from prison on a Friday or the day before a public holiday. That responds to calls from the Drug Deaths Taskforce, and from other experts, that the day on which people are released matters.

As several witnesses to the committee made clear, planning for an individual’s release from prison should start from the point of entry. The proposed pre-release planning duty in the bill is based on that principle. It will require wider public services to engage in pre-release planning at an earlier point, with the aim that people leave prison with a package of support, not a list of appointments.

The bill also establishes a new duty on Scottish ministers to publish statutory minimum standards for throughcare support for remanded or sentenced prisoners. We know that good practice exists, and I have seen the difference that throughcare support can make; however, it is not consistent, and the bill seeks to address that. Additionally, access to structured and monitored temporary release can support an individual’s reintegration and reduce their risk of reoffending. That is why we are introducing a new temporary release licence for certain long-term prisoners, with an emphasis on risk assessment and robust community monitoring and support.

The bill also introduces a wider emergency prisoner release power, with built-in safeguards to protect the security of prisons and the safety of prisoners and staff. I would hope never to use that power, but the pandemic has taught us, as it has other Administrations, not to be complacent on that score. That brings us into line with jurisdictions including England and Wales.

As I have made clear, the bill has victim safety at its heart. The new bail test explicitly not only recognises the safety of victims for the first time but defines “safety” as safety from both physical and psychological harm. That recognises our much better understanding of the harm that is caused by threatening or coercive behaviour. Additionally, victims will now be able to nominate a victim support organisation to receive information regarding the release of a prisoner. That VSO will be able to work with them or on their behalf in that regard.

I have said this right the way through the process so far, and I will say it to members again: I would genuinely welcome all constructive challenge and suggestions to make the bill more effective. Most of us took part in a debate some 18 months or so ago when we discussed and agreed that the remand levels were too high in Scotland and that something has to be done. If others have suggestions as to what can be done, I am more than willing to listen to them, as I have been.

At this stage, in addition to what I have laid out, all that we are doing is setting out the general principles of the bill. I would hope that we would get support at least for the general principles that follow on from that consensus that we previously had on remand being too high. In providing that challenge, I ask everyone else to consider whether they have an alternative proposal to address the use of remand, to safeguard victims or to improve support for people leaving prison. If they do, I am more than willing to listen and to take on board those comments.

The provisions in the bill are underpinned by a commitment to public protection and victim safety, with a focus on reducing crime, reoffending and future victimisation. That is what will make Scotland a safer place.

I move,

That the Parliament agrees to the general principles of the Bail and Release from Custody (Scotland) Bill.

I call Audrey Nicoll to speak on behalf of the Criminal Justice Committee.


Audrey Nicoll (Aberdeen South and North Kincardine) (SNP)

I am pleased to open the stage 1 debate on the Bail and Release from Custody (Scotland) Bill on behalf of the Criminal Justice Committee. I thank the committees clerks, Scottish Parliament information centre staff and our committee adviser, Mr Chris Miller, for their support throughout stage 1. I also thank the Scottish Government for its detailed response to our stage 1 report.

The committee gave detailed consideration to the proposals in the bill. We received a substantial amount of written and oral evidence, and we took the time to engage more widely with those affected by bail and release issues. We held extremely valuable sessions with survivors of serious crime to hear their experiences of bail and, where relevant, release from prison. We also visited organisations that support prisoners on release to hear about the challenges that they and their families face when leaving prison, and we visited Glasgow sheriff court to observe a typical busy Monday afternoon custody court. All that evidence helped inform our views on the bill.

I welcome to Parliament Fiona Fawdry and Nicola Caldwell of the GRAFT project, and I thank them for hosting members during an extremely informative visit to their project in Kilmarnock.

Some members of the committee felt unable to support the general principles of the bill due to concerns about its overall purpose, its impact and issues around resourcing. However, all members agreed that it contained some useful provisions, and the conclusions and recommendations in our stage 1 report were agreed without division. Committee members will set out their own views on specific areas of the bill during today’s debate, but I will highlight some—certainly not all—of the main findings outlined in our stage 1 report.

Section 1 of the bill requires a court to give justice social work the opportunity to provide relevant information when bail is being considered. We welcomed that new requirement in principle, as justice social work has a valuable role to play in informing court decisions. However, the committee had concerns that if justice social work is not properly resourced to carry out that enhanced role, there is a risk that the policy objectives of the bill may not be achieved, and that in fact we unintentionally introduce delays into the court system.

In its response, the Scottish Government agrees that resourcing an enhanced role for social work will be challenging and provides an assurance that it will

“engage closely with Social Work Scotland and COSLA”

on the matter.

Section 2 of the bill would change the grounds on which a court may decide to refuse bail. That means that bail would be refused only if an accused were considered to pose a risk to “public safety” or where there was

“a significant risk of prejudice to the interests of justice.”

We heard different views about the impact of changes to the bail test. Some witnesses were unclear on whether it would be a minor reframing of the rules or a more fundamental reform. There were concerns expressed about what is meant by “public safety”, which is a key part of the new bail test. We did not think that the bill fully addressed the concerns that were expressed by the senior judiciary that the outcomes of bail decisions might not, in fact, be changed by the new bail test.

Some committee members felt that it would be preferable if the factors that judges take into account in making bail decisions were included in the bill. In its response, the Government notes the range of views that were expressed on the new bail test and highlights that it seeks to

“combine ... a requirement for the court to use its judgement to determine the risk of an adverse event happening (e.g. offending while on bail) with the likely impact of such an event”.

One of the more difficult issues that some members grappled with was the proposal to repeal section 23D of the Criminal Procedure (Scotland) Act 1995. The section currently restricts the granting of bail in certain cases—notably, when an individual is accused of a violent, sexual or domestic abuse offence or drug trafficking and has a previous conviction under solemn procedure for such an offence. The Scottish Government argues that repealing section 23D would simplify the legal framework on bail and aid the decision making of the court.

Our main focus was to satisfy ourselves that the repeal of section 23D would not lead to adverse effects on the safety of victims, which has been a major concern of organisations that represent the victims of crime. On the other hand, many other organisations argued that the removal of section 23D was reasonable and would not impact the way in which courts consider victim safety. Some members of the committee were persuaded that the necessary safeguards will be in place if section 23D is repealed; others were not persuaded. In its response, the Scottish Government provides an assurance that it will continue engagement with victims groups

“regarding the repeal of Section 23D and how the new bail test has public safety and victim safety at the heart of how it operates.”

On part 2 of the bill, we welcomed the provisions on personal release plans for prisoners and minimum standards applying to throughcare support for prisoners, which will provide extra focus and structure to the arrangements for supporting prisoners on their release. The committee hopes that the measures will help to avoid the sorts of gaps in the provision of support that we have heard about. However, the committee also made the point that the

“policy objective of reducing reoffending and supporting reintegration into the community”

will be undermined

“unless the required resources are made available.”

The bill would allow information about a prisoner’s release that can already be given to a victim of that prisoner to be given to a victim support organisation. That was welcomed, in principle, but some victims organisations raised concerns about information being shared without the consent of the victim. We are pleased that the Scottish Government is willing to discuss those concerns further.

The committee heard evidence directly from survivors of crime about the current deficiencies of victim engagement in the justice system. The committee asks the Scottish Government to consider what further information can be provided to victims, to give them confidence that bail conditions are supervised effectively.

There are differences of views on the bill among committee members. However, there is also agreement from all members that it contains some useful provisions, some of which I have highlighted. If the Parliament agrees to the general principles of the bill today, we stand ready to scrutinise it at stage 2.


Jamie Greene (West Scotland) (Con)

I am pleased to open for the Conservatives in this afternoon’s debate on the Bail and Release from Custody (Scotland) Bill. I thank my committee colleagues, our clerks and advisers, and the many witnesses who gave evidence to us during the creation of what I think is a forensic report. As the convener rightly pointed out, every member of the committee played a constructive part in its creation—so much so that it was not until we got to the last paragraph on the last of its 50 pages that we agreed to disagree. Even then, our disagreement was complicated, to say the least. Indeed, the Labour members of the committee could not even agree among themselves on a final position, such were the nuances of personal opinion on the evidence that the committee had heard.

The report is one of compromise and collective agreement. It is an in-depth report. However, the Government’s response to it is another matter.

The bill follows a pattern of legislation that I have seen far too frequently in this place. It mingles policies that are good, bad and indifferent and forces us into a binary choice between supporting all of it and supporting none of it. That choice is made more difficult by the fact that the bill has two very distinct parts.

Part 1 seeks to make substantive changes to the judicial rules on whether someone who is accused of a crime should be remanded into custody or freed on bail. I think that that is where some of the unease on the bill might lie. Part 2 seeks to make changes to when and how prisoners can be released. We all know about the tragic consequences that can arise when that goes wrong. Another proposal in part 2 is that more information be offered to victims about prisoner release, for example. Although that is very welcome, it does not go far enough, in our view, because victims are too often the last to learn about decisions of that nature.

As is too often the case in Government legislation that the Parliament considers, the bill buries the controversial among the quite well meaning. It is clear from the evidence that we took that the bill divided opinion. It gave more questions than answers. It confused many witnesses—indeed, it confused committee members.

The witnesses largely fell into one of three camps. The first camp consisted mostly of academic friends of the Government, if I can use that phrase, who largely supported the bill in full. The second camp consisted of victims of crime and those who support victims of crime, who I think had quite mixed feelings about the bill. We can see that from the papers that they have sent us as recently as today. The third camp, which is the one that intrigued me the most, was made up of people who warned that interfering with the judiciary in the manner that is proposed would either prove to be meaningless or would amount to undue tinkering with the independence of the judiciary.

I think that our report echoes all of that. The people in that third group are right, because it is unclear what the Government’s objective really is with the bill. The Government goes to great lengths to say that the bill is absolutely not about clearing out our prisons or about tying the hands of judges. However, in its response to our report, the Government states clearly, in black and white:

“the overarching aim of the provisions is to refocus how custody is used”.

Let us think about the word “refocus”. It is an interesting choice of word. The bill seems to be based on the—in my view—untested assumption that our remand population is too high as a result of overuse of remand and overpopulation caused by the backlog.

The committee was highly critical of the lack of data that was available to underpin the Government’s position, and its presumption, on the matter. If we have an unusually high remand population, the question that must be asked is, “Why is that so?” We must also ask, “Is this bill necessary to fix the root cause of it?” At this stage, such simple questions remain unanswered.

We know that there is a backlog of untried prisoners in the system. It is clear that that is driving the remand population numbers. A demonstrable shift in the nature of crime patterns and in the nature of the offences that are coming through our courts is also an important factor. The Law Society of Scotland acknowledges that the accused are remanded into custody only because of the seriousness of the offence and the significant risk to the complainer or to the public, and that is rightly the case.

Liam McArthur (Orkney Islands) (LD)

My intervention is a bit of an echo of the point that Daniel Johnson made when he intervened on the cabinet secretary. I was a member of the Justice Committee in session 5, when we undertook an inquiry into remand. Getting to the granularity or the detail of why the remand population was so high was a task that escaped us, too. That points to the fact that the remand situation is not just a reflection of the backlog that has built up in recent years.

Jamie Greene

It is not just a reflection of the backlog; it has been exacerbated by the backlog over recent years. I am about to come on to the question of what underpins the Government’s approach in this bill.

As a result of legislation that we have passed, such as the Domestic Abuse (Scotland) Act 2018, and a raft of historical sexual allegations that are now coming to light and seeing their day in court, coupled with other Government decisions, including the presumption against short sentences, we are seeing a changing profile of those who are being remanded in custody. However, here is the issue: I think that the proposed changes in the bill will deal with none of those issues. I think that we can only be led to the conclusion that the Government takes the view either that judges and sheriffs are making the wrong decisions or that the rules that govern those decisions are wrong. One of those things must be true, or the Government would not have taken the approach that it did.

Will the member take an intervention?

Jamie Greene

I do not have time; perhaps the cabinet secretary could respond to that point when he sums up.

Whichever way it is spun, the bill narrows the parameters within which bail can be granted, and I think that that is why there is opposition to it. We have heard unusual but really stark criticism of the Government’s approach from the judiciary itself. In evidence, the Crown argued that inconsistency in the application of the new public safety test would lead to

“confusion and, ultimately, inefficiency”—[Official Report, Criminal Justice Committee, 25 January 2023; c 27.]

and the Faculty of Advocates told us:

“if it is intended to be a change, it should be more overt, but, if it is not intended to be a change to the test, it is all pointless”.—[Official Report, Criminal Justice Committee, 18 January 2023; c 10.]

The cabinet secretary responded to concerns over the definition of the public safety test simply by spelling out the dictionary definition of the words.

Here is my challenge to the cabinet secretary and the SNP on this. They should tell us what they really mean when they talk about refocusing how custody is used. What truth and what intent lies behind the jargon? We do not know.

The Government is adamant that remanding a person in custody should be the last resort. I agree, but is that not already the case? Indeed, I saw it with my own two eyes in a busy custody court, one grim Monday morning in Glasgow. Presumably, therefore, Lord Carloway will need correcting by ministers over his learned view that the bill will

“introduce an unnecessary, cumbersome and artificial process”

without changing outcomes on bail decision making. In other words, he is saying, “What is the point? Is this tinkering for tinkering’s sake?” It is ironic that we are assured by ministers that at the heart of the new bail test lies a commitment to public safety and a reduction in offending. That is admirable, but how can we marry that up with the fact that one in four convicted crimes in Scotland in the year 2020 to 2021 were committed by someone on bail? That represents 15,000 offences and, sadly, seven people lost their lives as a result.

I think that only in some parallel universe could someone come to the conclusion that, by releasing more people on bail, we can cut crime, reduce reoffending, improve public safety and, more importantly, improve victim confidence in the justice system. It is no surprise that the very people who support victims of crime have been vocal about that point—I refer to Scottish Women’s Aid and Victim Support Scotland, which reiterated their deep unease about the narrowing of the courts’ decision making powers to refuse bail. They said that that risks the safety of victims of crime, particularly women, children and young people. Far from protecting victims, the proposal will allow bail to be granted to repeat and serial perpetrators of domestic abuse. The Government’s response to that was to say that it noted the comments. I say to the cabinet secretary that it might be about time that the Government did less noting and more listening.

I will close where I started. I think that our stage 1 report was balanced, fair and punchy. It shows how proper scrutiny should be done in this place. However, when it comes to tinkering with laws that protect public safety, we on the Conservative benches are minded to err on the side of caution and the side of victims, and we cannot support any legislation that compromises confidence or trust in the justice system. If the victims of abuse and violence are not convinced, nor am I. If the judiciary is not convinced, nor am I. For those reasons, we cannot support the general principles of the bill as drafted.


Katy Clark (West Scotland) (Lab)

I am pleased to open this debate on behalf of Scottish Labour. As the cabinet secretary said, the backdrop to the debate is the fact that Scotland has the highest remand figures and the highest prison population per head in western Europe, and that has been the case for many decades. He also said that, currently, in the region of 29 per cent of the prison population are on remand, but the figure for women is higher. The most recent statistic is that 36 per cent of women in prison are on remand.

Historically, Scottish people were proud of our Scottish criminal justice system, particularly the protections provided by strict time limits on how long the state could hold an accused person in custody before trial. Those time limits have been extended on more than one occasion—most recently, last year—since the creation of the Scottish Parliament. That might be one of the factors that have led to Scotland continuing to have high remand rates.

In 2007, the Scottish Prisons Commission recommended a target of reducing Scotland’s prison population to 5,000. However, the prison population in Scotland has not been below 7,000 since then. Many of the points that were made in the commission’s report are very similar to those that have been provided in the chamber at stage 1.

The report stated that remand was often used as a result of a lack of information or a lack of services in the community to support people on bail. Scottish Labour believes that that can be addressed not by legislation but only by focusing additional funding on court social work and those who are leaving prison. The backdrop is that justice and council budgets are being cut, and the social work justice services in the courts have been reduced over many years.

As Audrey Nicoll said, the committee expressed concern about a lack of data on who is being remanded. Scottish Labour believes that that data is necessary to create evidence-based law.

We accept that we have a long-term challenge, but we believe that the bill represents a significant missed opportunity. It proposes a number of changes to bail law, but it is not clear whether it will increase or reduce the remand population. It is not clear whether those who have been charged with violent offences will be more or less likely to be granted bail or, indeed, whether those who have been accused of non-violent offences will be more or less likely to receive bail. More people who have been charged with violent offences might be remanded as a result of the bill being passed, and fewer people who have been charged with non-violent offences might be remanded. However, that is not clear because of the lack of clarity in the drafting of the bill.

Defence and prosecution lawyers said that they were not clear about how the public safety test would be interpreted by the courts. We believe that the most likely outcome is that the bill will make no difference in most cases, but it will lead to more appeals until the law is settled. We do not believe that that is in the interests of justice. We call on the Scottish Government to outline clearly to the Scottish Parliament and, indeed, to the courts what it is trying to achieve and the factors that it wishes the courts to consider in relation to public safety.

The bill will lower the threshold to remand people who fail to turn up at court. That will make it more likely that accused people will obtain bail in circumstances in which people are currently remanded, if there is a history of failing to turn up. We believe that the implications for and, indeed, the costs to the justice system involved in apprehending an accused person to appear in court and to be taken through the justice system need to be properly scrutinised. The committee does not believe that we had the opportunity to do that.

As Jamie Greene said, the most senior judge in Scotland, Lord Carloway, said in his response to the Scottish Government on behalf of the justiciary that the bill will introduce a “cumbersome and artificial process”—more bureaucracy—and that

“It is difficult to see how the proposed new structure will make any practical difference in outcomes.”

However, women’s organisations such as Scottish Women’s Aid and Victim Support Scotland have provided submissions that say that they believe that the bill will narrow courts’ discretion and that the safety of victims of crime—particularly women, children and young people experiencing domestic abuse—will be put at risk.

As Audrey Nicoll said, we have heard conflicting evidence on the proposal to repeal section 23D of the 1995 act, so we are not clear whether its repeal will make a significant difference in many cases.

We know that, proportionately, Scotland has one of the highest prison populations in Europe—I think that we are second. Although more women are being charged with violent offences, almost 40 per cent of convicted women prisoners are imprisoned for non-violent offences, and it is not clear whether the bill will enable women to get bail more easily.

Scottish Labour believes that custody is rarely the correct disposal for women facing criminal charges, but there continues to be a lack of effective and credible alternatives being provided to the courts. If we do not provide the required funding and resources or address the concerns being raised by the judiciary, there is a serious danger that the bill will only add more bureaucracy. We believe that the bill represents a missed opportunity, so we ask the Scottish Government to address the concerns that are being raised—by judges, legal practitioners and, indeed, those representing victim complainers—and substantially redraft the bill.


Liam McArthur (Orkney Islands) (LD)

I will start with an apology. I have to leave the debate early in order to fly home for the Orkney youth awards. I am not anticipating picking up an award but, nevertheless, I am very much looking forward to attending the event.

I congratulate Audrey Nicoll and her colleagues on the Criminal Justice Committee on their report. I did not sit through the evidence, but I have had an opportunity to read the report and, indeed, a number of the submissions. I am grateful to those who circulated briefings, too.

In common with Katy Clark and the cabinet secretary, I will start by setting out a degree of context. Scotland’s prison population is far too high; it has been far too high for some time. We lock up more of our population than, I think, any other country in Europe other than Turkey and Russia, and overcrowding has its effects. It was certainly the case that, pretty much throughout the previous parliamentary session, every one of our prisons—bar, maybe, one or two—was overcrowded. Double bunking was the norm. The effects of overcrowding add risks to prisoners, to prison staff and, I would argue, to communities when prisoners are released, as they inevitably are in almost every instance, back into those communities.

In the previous parliamentary session, I well remember the cabinet secretary’s predecessor in the role, Humza Yousaf, convening a meeting of justice spokespeople when it was pretty clear that the number of people in our male prisons was about to top 8,000—a record at that point. Although we all had our political differences, there was a shared understanding that it was imperative to take action to bring down the prison population. In fact, I think that prison reform is long overdue, and it is the aspect of the justice brief that has probably been given the least attention over the duration of devolution.

I was very much struck by what I thought was an excellent briefing from the Scottish Parliament information centre—as they always are—which pointed to the fact that, over the past 20 years, the number of those in our prison population who have been sentenced has remained broadly the same. The number went up but, more recently, for the male and female prisoner populations, it has come down again. However, the number of those on remand now constitutes a significantly higher proportion of both the male and the female prison populations. I think that the figure has doubled in both instances, with those on remand representing about a third of the male prison population and, as Katy Clark reminded us, well over a third of the female prison population. That is alarming. Jamie Greene is right to point to the effects of Covid and the backlog, but let us make no bones about it—this has been a long-standing and enduring problem. In fact, of those who are on remand, a significant proportion are untried, so it is not that they have been tried and are awaiting sentencing.

In the previous session of Parliament, the Justice Committee held an inquiry on remand—I think that it was our first inquiry. It was an excellent inquiry that shed a lot of light on the issues around remand. I am sure that Audrey Nicoll and her colleagues have gone over similar ground. I have to say that our report did not necessarily include any obvious solutions. The data behind remand remains as unclear as it was. Although electronic monitoring and bail were seen as options for addressing some aspects of the issue, none of the options looked like a silver bullet.

I accept that action is needed, and I welcome the bill. However, I have some of the same misgivings about the impact of the bill as I had previously. I note that the committee has not arrived at a settled view on the matter.

Greater input from criminal justice social work makes sense. I note what the cabinet secretary said about additional funding, but real concerns exist about what is happening to local government budgets—local government should be funded to be able to perform the duties that have been placed on it.

Funding is also critical in relation to throughcare, which has been under pressure for many years. It was removed entirely for a period of redeployment during Covid, but it is key to rehabilitation and, indeed, to reducing re-offending over the longer term.

I welcome the points that have been made in relation to the application of statutory standards and the proposals around pre-release and not releasing on a Friday or bank holiday. For years, justice committees have heard about the problems that that causes.

The key and most sensitive aspect of the bill is the changes to the bail test. I can see the arguments for saying that the changes simplify the process but, equally, Lord Carloway’s comments about the changes adding greater bureaucracy and making the process more cumbersome need to be taken seriously. The public safety test, including the safety of victims, is critical and would allow a degree of leeway in relation to the risk of prejudice to the interests of justice. However, it is not entirely clear at this stage how the courts would interpret it. I note the points that have been made about the proposals not necessarily making a huge difference.

I understand the concerns about the removal of section 23D of the 1995 act, although I hope that they can be allayed. I know that the committee has urged the cabinet secretary to have further detailed conversations with Victim Support Scotland, Rape Crisis Scotland and others.

I find myself in not a wholly dissimilar place to Katy Clark, although I might not go quite as far as Jamie Greene. Scottish Liberal Democrats will support the principles of the bill this evening, not least because of the context that I set out earlier. However, we are concerned that an awful lot of work will need to be done through stages 2 and 3 to command the confidence of the judiciary, of victims and of the Parliament. I look forward to participating in those discussions.

We now move to the open debate. I advise members that there is a bit of time in hand, so there will be around six minutes for back-bench speeches.


Fulton MacGregor (Coatbridge and Chryston) (SNP)

I am pleased to speak in the debate as a member of the Criminal Justice Committee and, as the convener has done, I place on record my thanks to all the people who gave evidence and to the committee clerks for their tireless work on what we all agree is an outstanding stage 1 report.

The Scottish Government is wholly committed to transforming the justice sector, and we have been doing so over a sustained period. There is no denying that we imprison too many people in Scotland, which is very much at odds with the Tory commentary on the SNP’s being soft on justice—indeed, from my and many other members’ points of view, the evidence suggests that we need to use community alternatives more.

We all agree that we remand and imprison far too many people. Therefore, I welcome the bill’s being introduced to try to address the problem. We are stepping away from the narrative that prison is solely for punishment—it is not, and that has been widely accepted for some time. However, if we are to focus on rehabilitation and reparation, we have to consider that imprisonment is not always the best way forward for all those involved—both for people who commit crimes and for victims of crime. In fact, we heard some evidence in committee, including from Professor Fergus McNeill, whose quote was absolutely brilliant—the cabinet secretary stole my thunder on that point—that simply putting people in prison without support can help to perpetuate a cycle of reoffending rather than the opposite.

The bill’s primary purpose is to amend the law to ensure that alternatives to custody are at the forefront of sentencing where that is appropriate. There is a wealth of evidence to show that community justice services are successful and that, with a focus on rehabilitation and reintegration for those who are leaving prison, we will reduce crime overall.

We must now take on board the evidence that we have that those in prison are much more likely to have experienced trauma, mental ill health and abuse, and move on to make a more trauma-informed response. I know that the cabinet secretary and the Government are committed to that.

Of course, victim safety has to be at the core of any decision that we make, and both physical and emotional harm must be considered in thinking about decisions that are made in relation to bail. The convener was correct to point out that the committee spoke to victims of crime as part of our scrutiny of the bill and heard some quite harrowing evidence.

We need to commit to working with victims organisations such as Victim Support Scotland and Scottish Women’s Aid, both of which submitted evidence to the committee, to ensure that the legislation will continue to put victims’ safety at its core.

There are two parts to the bill. Part 1 amends the current laws relating to bail. That includes requiring justice social work to be given the opportunity to provide information to the court when it is making decisions about bail in all cases. As a former justice social worker, I think that that is a welcome addition. While social work reports are already often requested and are valued by the court, the new system will help courts to gather more information in cases where it may not previously have been available.

Liam McArthur

As I said, the additional input from criminal justice social work can only be beneficial, but it has a resource implication, and the timing of providing that information will also come at a cost. Did the committee look at that, and does it have any recommendations for the Government on the matter?

Fulton MacGregor

Mr McArthur must have joined the cabinet secretary in having a look at my speech beforehand, because I am just coming to that.

As I was saying, that requirement should also lead to even greater use of bail supervision, as a valued intervention that can provide the courts with more confidence that a person is being monitored closely while they await trial or sentencing.

To go back to Liam McArthur’s point, that leads us to the obvious question of resources. Court social work teams are usually separate from community justice social work teams and tend to be relatively small. If we are to meet the policy objectives of the bill, there will need to be substantial resourcing of community justice. The cabinet secretary will be aware that I continually raised that issue during stage 1, and almost all stakeholders recognised the need for investment. I appreciate that finances are currently tight, but if we are to get this right, there could be great savings on the other side, as I think that the cabinet secretary and the Government recognise.

It is fair to say that there has been some further commitment to justice social work in this year’s budget, which I welcome. However, I suggest that as the bill goes through and, I hope, becomes law—if that is the will of Parliament—that aspect may need to remain under regular review.

Part 2 of the bill makes changes to some prisoner release arrangements and the support that is provided to those who are being released. It is vital to ensure that sensible decisions can be made where someone is due to be released on a public holiday, for example, or before the weekend. They would otherwise potentially face difficulties in accessing a range of services such as their bank, their doctor’s surgery, the post office, the jobcentre, their local council, addiction services, food banks and emergency housing. That is quite a long list, but that is to name just a few.

I was on the previous justice committee, too. As Liam McArthur said, we have consistently—both at stage 1 of this bill and in the justice committees—heard a lot of evidence on the issues with weekend release. The Wheatley Group, for example, made it clear when we went out to visit it during the stage 1 process that it had a lot of concerns about release times.

I really welcome part 2 of the bill, although colleagues have expressed some concerns around it. I believe that it can help to tackle the issues around release times, and to ensure that people do not simply come out of prison and will at least have an opportunity to be supported to not get involved in risk factors that could lead to reoffending.

On that note, I encourage members to vote for the bill at stage 1 and allow us to move forward together to stage 2, where we can consider amendments to improve it even further.


Donald Cameron (Highlands and Islands) (Con)

I refer members to my entry in the register of members’ interests as a member of the Faculty of Advocates.

I thank the committee for its stage 1 report, which is a lengthy and rigorous document. The debate has also been excellent so far. It is refreshing both to see in the committee’s report and to hear in the chamber that members are grappling with difficult issues. However, it is clear from the various criticisms in the report that there are several concerns from victims organisations about the bill’s provisions on bail.

It is a well-known fact that one in four of all crimes are committed by people who are on bail. In 2020-21, that included seven homicides.

As others have said—and as is our belief on the Conservative benches—the bill will lead to more offenders being released on bail and that will lead to a rise in crime. That belief was also supported by witnesses to the committee.

Keith Brown

I understand the point that Donald Cameron is making about increasing crime. Does he recognise that we have perhaps the lowest level of crime since we started recording crime? On homicide in particular—and I mean generally, not with regard to people who have been on bail—we have the lowest number of homicides on record.

Donald Cameron

I recognise the statistic that the cabinet secretary has given but, at the same time, that does not mean that we should enact provisions that might lead to an increase in crime.

Kate Wallace of Victim Support said:

“Without any change to what is in place around bail—supervision, monitoring, management and support—yes, logic tells us that more people will be put at risk, there will be more victims of crime and more lives will be ruined.”—[Official Report, Criminal Justice Committee, 11 January 2023; c 4.]

As someone who has acted for both the prosecution and the defence in our criminal courts, I know at first hand how that plays out, so I urge the cabinet secretary to think very carefully indeed about the unintended consequences of the bill.

The bill is designed to reduce the remand population in our prisons, which we all know is far too high. The main factor that is pushing up the numbers on remand is the Scottish Government’s failure to deal with the backlog that was caused by Covid. It is not the only factor, and Liam McArthur is right that it has been a long-standing problem, but it is now the main factor. Nearly 30,000 trials are currently backlogged in Scotland’s courts, which is 10,000 more than the pre-pandemic level, and it could take longer than three years to clear the backlog.

Will the member take an intervention?

Donald Cameron

I would love to take an intervention from Mr Johnson, but I do not have time, because I have only five minutes.

The backlog is objectionable because it will lead to unnecessary suffering for victims and their families, and we must take action to ensure that the court system recovers faster.

I will draw out a few specific provisions in the bill. Section 2 seeks to change the grounds on which a court may decide to refuse bail. Again, the committee heard warnings of the impact on victims. Scottish Women’s Aid cautions that the provisions will

“narrow ... the court’s discretion to refuse bail”,

which will risk the safety of victims of crime, particularly

“women, children and young people experiencing domestic abuse.”

Victims groups raised concerns about section 3 of the bill, which would repeal section 23D of the 1995 act—Katy Clark has already spoken about that. That section of the 1995 act restricts the granting of bail in certain solemn cases. Again, there were warnings to the committee that that would remove a safeguard for victims in cases involving sexual offences and domestic abuse.

The committee also had concerns about section 4 of the bill, which requires written reasons to refuse bail. The report mentions a concern about the time that it would take a court to fulfil the requirements of that particular section. If the bill imposes more time-consuming requirements on the courts, that could make the backlog worse, which would exacerbate the underlying problem of our remand population. It is a vicious circle.

Finally, I am deeply concerned about section 8 of the bill, which gives the Scottish Government power to make regulations for early release of groups of prisoners in an emergency situation, such as the spread of a harmful infection in prison. The committee concluded that it was not persuaded of the need to enshrine that as an emergency power. That is a very valid point. Those powers might well be needed, but they should be applied for as emergency powers only at the time that they are required.

A number of concerns have been raised about the bill, particularly over victim safeguards. Given that and the need to put public safety first, I entirely support the decision of members on the Conservative benches to vote against the general principles at decision time.


Collette Stevenson (East Kilbride) (SNP)

I am grateful to the cabinet secretary for bringing this stage 1 debate to Parliament today. As others in the chamber have done, I thank the witnesses who have come to the Criminal Justice Committee to give evidence, and I thank my colleagues and clerks on the committee for the work that they have done alongside me.

The Scottish Government’s overarching aims for the justice system are to improve public safety, support victims and reduce rates of victimisation. The Bail and Release from Custody (Scotland) Bill is an important step in the Scottish Government’s transformation of the justice system and in its commitment to refocus how imprisonment is used.

Scotland has a high remand population; the committee has heard from witnesses the concern that almost a third of people in prison are on remand. In response to that concern and to calls for action on the matter, the bill is intended to change how bail law operates so that people who do not pose a risk of serious harm are managed safely in the community.

The bill recognises that prison will always be necessary for the most serious cases, but we need to look again at how custody is used. History shows us that legislative intervention is needed to address the issue and, as the cabinet secretary highlighted, the primary purpose of the bill is not to reduce prison numbers but to ensure that

“the people who need to be held in custody are held in custody.”

A decision on bail is for the independent courts to take in every case, but the bill aims to refocus how remand is used through changes to the legal framework.

The committee deliberated on electronically monitored bail. By considering time that is spent being the subject of an electronically monitored curfew condition against the duration of a custodial sentence, the courts ensure consistency and fairness across sentencing.

Jamie Greene

Collette Stevenson will have noted that the summary of the discussion by the committee was that, although that might be a welcome element in sentencing, there should not be a formula when it comes to judges’ decision making, and the decision should be left solely to the discretion of judges. That is the right place to leave that power.

Collette Stevenson

I whole-heartedly agree. There was also some discussion about the formula that is currently used. I agree with Jamie Greene about decisions being left to the discretion of judges and sheriffs.

The use of monitored remand has implications for the victims of crime, so I support the committee’s view, while agreeing with the proposal in principle, that the courts should be given a degree of discretion with regard to adjustments of sentences, as I have just pointed out to Jamie Greene.

An important part of the justice system is to ensure rehabilitation and reintegration of people who are leaving prison, in order to help them to resettle in their communities, so the bill aims to give that greater focus. The committee welcomes proposals to ensure that people are not released from prison on Fridays or bank holidays, for example. If the bill is passed, that will ensure that prisoners have appropriate access to support services that operate through the working week. That will improve risk management of and support for people who are vulnerable to reoffending.

In addition, I support the committee’s calls for the Scottish Government to publish minimum national standards in throughcare support, alongside implementation of effective co-ordinated personal release planning across the Scottish Prison Service, the wider public sector and the third sector.

The Bail and Release from Custody (Scotland) Bill is an important step in transforming the justice sector. It will ensure a fairer and more effective remand process in Scotland, and it will help with rehabilitation and reintegration of people who are leaving prison. Importantly, that will help to reduce reoffending so that there are fewer victims of crime.

I agree with the bill’s aims, and I hope that members will support its general principles today.


Carol Mochan (South Scotland) (Lab)

I, too, thank the committee for its work on the bill. I have never been on the Criminal Justice Committee, so I have found it interesting to take part in this debate.

It is interesting that, on reading the bill at stage 1, it looks like something that people could easily support. However, research shows that the bill has a lot of words and that there needs to be clarity around many of the issues, including resourcing, which the committee’s report talks about. I hope to draw out those points as I go through my speech.

As we have heard from other speakers today, Scotland has the highest remand rate in the entirety of Europe. Yet, based on what we can see at stage 1, there is nothing in the bill that directly addresses that fact. That is a problem.

I have a genuine concern that the Government has not adequately engaged on the matters that experts in the field raised during the committee stage 1 process. It seems to me that the Government does not understand that the best practice in many of the proposals in the bill is already incorporated, but resourcing is a major issue.

It was also interesting to me when a colleague brought it to my attention that many of the recommendations that were made in 2018 by the Justice Committee in the previous parliamentary session have not been realised. That point has been raised in interventions during this debate, as well.

What is required, as is so often the case, is increased financial support for the justice system, rather than piecemeal reform that satisfies no one. The cabinet secretary said that throughcare is not consistent. In my view, throughcare is not resourced. We need honesty around that.

We have a bill that, at stage 1, does not make it clear how it will address the issues that have been outlined by the Criminal Justice Committee and by people in the legal profession, in policing and in victim support organisations in the third sector. That point has been made by a number of members in the debate.

The bill does not provide the necessary funding, and the Government does not even acknowledge the funding that is necessary, although the committee obviously does.

There is clearly a need for reform, based on what experts have told us, but the proposals that are set out in the bill seem to have very unclear statistical data to support the conclusions. I accept that—as others have mentioned—it appears to be hard to come by data on how many people are on remand, and more so in respect of data on who they are, why they are on remand and how that came about. We have had acknowledgment that even the previous committee found such data difficult to find. However, I am keen to see there being greater emphasis on data to justify why the reforms are required to be in the bill, rather than their being addressed through non-legislative measures. Policy is better made when we truly understand matters, so that has been a frequent criticism of the bill.

Beyond that, it is completely unclear whether the bill will reduce the remand population, although surely that should be the key aim. We have all said that remand numbers are far too high. If the bill will not reduce remand numbers, it is difficult to justify to the public why the legislation is necessary. We have to provide measures with which we can assess whether the proposed policies work. Otherwise, the public will be quite right to question what we are doing.

As drafted, the bill would add a significant layer of bureaucracy, but Scottish Labour and others are not convinced that it would improve the situation, which is ultimately what we want to do, by addressing backlogs in remand and addressing the concerns of victims.

We know that half the people who are on remand do not end up with custodial sentences, but there is little in the bill to actively address that. The new bail test is focused on public safety, but as someone who is not on the Criminal Justice Committee, I say that it is poorly designed and will lead only to confusion and inconsistency. The lack of precision will have real-life consequences for a great many people. The lack of precision around the definition of “public safety” will have great consequences—not least for victims of crime, who are, as we know, so often failed by the justice system.

Audrey Nicoll

On the definition of “public safety”, I agree that most, or probably all, members of the committee scrutinised that issue. I just point out that my recollection of evidence from witnesses was that there is a desire for guidance on what “public safety” means, but there was no specific request for a definition. That is perhaps because people understand that a definition can almost make things more difficult.

Carol Mochan

Obviously, I defer to Audrey Nicoll’s understanding of the bill and her experience in the matter but, looking in, it appears to me that it will be confusing if that definition is not made clearer. Sometimes, as lawmakers, we have to stand up and be counted and actually define what we mean by things. If the public and law officers do not have confidence in what we define as public safety, it will definitely be unclear in going through the processes that will happen out there in the world, which will have a knock-on effect on the whole system.

With regard to removal of bail restrictions, we are in the unusual situation in which it is unclear whether that reform will make it easier for people who are accused of serial sexual offences—others have mentioned that—and domestic abuse to be out on bail. Reform must satisfy the victims of crime and the organisations that represent them; however, we have heard that there are concerns in that respect.

As I have said many times in the chamber, if we are to tackle the important work of legislating for this country, we must do it seriously and effectively. I have serious doubts about the bill, at this stage. Bad legislation is not good governance so, with my Labour Party colleagues, I think that there is a lot of work to be done on the bill before it can become legislation.


Rona Mackay (Strathkelvin and Bearsden) (SNP)

Around 7,300 people are imprisoned in Scotland every year. Scotland’s incarceration rate per 100,000 of population is 135, compared with 66 in the Netherlands. We have one of the highest rates of remand compared with other countries in the UK or the European Union, so it is clear that we are locking up and remanding too many people, as everyone in the chamber agreed about 18 months ago, and it is essential that new practice happens if our justice system is to progress.

As we have heard, the bill has not been straightforward and I, too, thank the many witnesses who gave evidence to the committee. I also thank the clerks, the bill team and SPICe for their customary excellent support and advice.

Remand must be a last resort, and a much greater focus on prevention, reintegration and rehabilitation is the way forward, which is why I fully support the aims of the bill.

Katy Clark

Like me, Rona Mackay is a member of the Criminal Justice Committee, where we have grappled with the bill over many weeks. Does she think that it is more likely that somebody who is charged with a violent offence will get bail in the future, if the bill was to go through?

Rona Mackay

I do not believe so. I think that very high risk-assessment standards will be kept. I will discuss the issue of section 23D of the 1995 act later in my speech, but my answer to the question is that I do not think so.

On the discussion on data and why remand levels are so high, I think that Professor Fergus McNeill and His Majesty’s chief inspector of prisons, Wendy Sinclair-Gieben, were correct when they said that the lack of data makes it incredibly difficult to analyse and draw conclusions on that. I think that we are all in agreement with that.

Section 1 calls for input from justice social work in relation to pre-trial bail decisions. The circumstances surrounding each person being considered for release are always different, and every decision should be taken with the maximum amount of information being made available to assist it.

Howard League Scotland said in evidence that, in too many cases, particularly those involving women, people are remanded due to a lack of criminal justice social work reports. As convener of the cross-party group on women, families and justice, I find that very concerning. Earlier this month, I led a members’ business debate to highlight the excellent report from Families Outside, “Paying the Price: The Cost to Families of Imprisonment and Release”, which illustrates just how much imprisonment wrecks families and affects children. I agree with David Mackie of the Howard League when he says that there is merit in the bill making specific reference to the rights of children. I hope that the cabinet secretary will address that in closing.

Section 2 makes changes to prisoner release arrangements and provision of support on throughcare. My colleagues have outlined those already, so I will not repeat them.

I will focus the rest of my contribution on section 3, which would repeal section 23D of the 1995 act and so remove existing restrictions on granting bail in solemn procedures to allow the courts to apply the tests used in other cases. The evidence that we heard from the majority of witnesses and almost all the legal professionals was in favour of the removal of those restrictions. However, Scottish Women’s Aid and Victim Support Scotland have concerns about the implications for domestic abuse offenders, and I do, too.

Due to the unique nature of domestic abuse and gender-based violence, perpetrators continue to present some degree of risk to women, children and young people for long periods following their involvement in the criminal justice system, which must be taken into account when determining their suitability for release. That is a matter of individual risk, not public safety risk, and should be dealt with as such. Given women’s experiences of their abusers being given bail, women need as much protection as the law can afford them.

Victim Support Scotland believes that the restriction currently contained in section 23D was inserted to emphasise the seriousness of the risks associated with cases involving violence against women and girls. Although the committee heard assurances from witnesses that the removal of section 23D would not mean more risk to women, I hope that the cabinet secretary will address how important it is that women are reassured that the bill will not impact them. Women must have confidence that the justice system will protect them.

In a similar vein, and because of the—perhaps unlikely—possibility that the emergency release of prisoners might become necessary for some reason, I believe that the restrictions in the Coronavirus (Recovery and Reform) (Scotland) Act 2022 regarding domestic abusers should remain in place, and I intend to speak to the Scottish Government about lodging an amendment in that regard.

The bill is clearly a complex one and not without issues. Katy Clark described the bill as a missed opportunity. I would suggest that it would be a missed opportunity if Labour did not agree to the general principles of a bill that will change the culture of imprisonment and remand, as we desperately need to do.

I urge members to support the general principles of the bill, despite the differences on detail that can be worked out at later stages. We must change the culture of remand and custody in our justice system, and prison must always be a last resort.

Members may wish to be aware that we have a little time in hand this afternoon.


Maggie Chapman (North East Scotland) (Green)

I welcome the bill and thank the cabinet secretary for the open and frank discussions that we have had about its provisions and for the sensitivity that he has shown in responding to issues that were raised by members of the public and the Criminal Justice Committee.

I am acutely aware of the concerns of organisations representing victims and survivors, especially of sexual violence and domestic abuse. I refer members to my entry in the register of members’ interests and to my experience in organisations supporting those who have experienced rape and sexual assault. It is vital not only that the specific safety needs of such survivors are made clear in the bill but that all necessary frameworks of support, protection and information—including for children—are in place and are properly funded and freely accessible. Survivors need the whole system to work for them, and the incarceration of offenders is only a part of the justice, care, recognition and respect that they so greatly deserve.

One tragedy of our society is that the effects of violence and abuse upon women do not always lead to their being recognised as victims or survivors. In fact, they often lead to situations in which the women themselves are charged with criminal offences. There is a real danger that we, in our relative comfort and privilege, will view perpetrators and victims of crime as binary categories and will imagine a bright line between those who are prosecuted and those whom we seek to protect. It is truly shocking that, for many women, prison is seen as the safest place to be.

For the sake of those women and of us all, we cannot and must not forget the fundamental principle that each accused person is entitled to a presumption of innocence, unless and until they are proved guilty. That is why bail is a right, not a privilege. So, when situations arise in which bail must be refused, it is only right, as the bill provides, that written reasons should be given by the court. If a person who has not been convicted of any crime is to be denied their liberty, they should have the right to know why that is and to have that information communicated in ways that they can understand and properly consider, not just hear briefly amid the confusion and emotion of a hearing.

Jamie Greene

I have watched many such hearings. Judges always give clear and valid reasons for their decisions, which would also be put in writing if the decision were appealed. Their concern is that cases might be delayed if absolutely everything that is said in court has to be transcribed. We know already how expensive that is.

Maggie Chapman

I thank the member for that intervention. It is important to understand that not everybody will share the same level of understanding or access to that information at a time when emotions are running high. The context of the hearing is perhaps not the most conducive to people understanding that information.

The bill is not about prison numbers or statistics; it is about people—not always, but very often those who are the most disadvantaged and vulnerable, the poorest and the most excluded. We know that, as is illustrated by the scandal of deaths related to drug use, Scotland is a deeply traumatised society in which many have experienced childhoods of loss and deprivation and have never known emotional availability, a sense of control without risk taking, or stillness that does not reawaken trauma.

To our collective shame, that trauma is both exacerbated and newly created by experiences of the criminal justice system, and by prison in particular. There is a reason why we have to talk so much about reintegration, for incarceration is itself a process of disintegration, and that disintegration, that trauma and those losses are inflicted not just on the imprisoned person but on those who love and depend on them.

Locking people up is not a risk-free option. It accumulates risk for the future—for the person, their family, their community and wider society. We are taking people who need care and punishing them for that need. It is no surprise that, for many, the pressure is unbearable.

I hope that the bill can be part of a wider move away from incarceration as our default solution to social harm, away from the idea that it is only through imprisonment that society can express disapproval, and away from the toxic language of “monsters”, “thugs” and “scum”. We know that some of the most serious harms—social and environmental harms that are perpetrated by the crimes of the powerful—are often met with quite a different response.

Prison, like war, is an easy-sounding so-called solution that merely avoids dealing with the real causes of harm. We know what those causes are—inequality, misogyny and poverty—and we know much about how to address them and what works. We know that much more is required in many ways, not least in terms of time, staff and resources for our public and third sector agencies.

In implementing the law in the bill, we will need to use the best tools that are available, including bail conditions with real support when and where it is needed and, where it is truly necessary, electronic monitoring as a last alternative before custody, for such monitoring is essentially punitive. It is a fundamental interference by the state with the liberty of an unconvicted person. It must not be used simply because it is there.

There is much to be done within and outside criminal justice to transform a system that is currently failing everyone: victims, survivors, perpetrators and the public. People who are leaving prison need to be able to access basic services: healthcare, social security and, most fundamental of all, appropriate housing. The vital provisions in the bill, such as the ending of Friday releases, must be part of a wider and deeper framework of support.

We need credible non-custodial responses to crime, including more restorative and community justice, because prison is not a place of safety, not a place of recovery and not a place of rehabilitation.

For those who are already in the prison system, we need support, therapeutic communities, and humane and healing places to live and thrive—places such as the new Bella centre in Dundee. We need the bill, supported by frameworks of resource, co-operation and protection, as part of the transformational change that Scotland deserves.


Jeremy Balfour (Lothian) (Con)

I, too, thank the Criminal Justice Committee for its report, which outlines the situation very clearly.

Justice is a cornerstone of our society. Ensuring the safety of citizens is the most fundamental role of Government. That duty should not be taken lightly, and it should not be an area of compromise. We must do everything that we can to ensure that everyone is as safe as possible, putting the victims of crime at the centre of any and all policy. We need to be firm and thorough, and we must ensure that justice is carried out. On that basis, I have strong reservations about the bill as presented to the Parliament. In many places, it seems to put the feelings of criminals above the safety and security of our communities. It also seems to represent something of a power grab by the Scottish ministers. I will take those themes in turn.

The stage 1 report identified a gap in the law when it comes to the inability of the Parole Board for Scotland to reverse a recommendation of release on licence for a prisoner if the offender has breached their release conditions. That is simply unacceptable. Parole officers must have the ability to react to behaviour and information on a case as it presents itself, and they must not be tied to something that was decided beforehand. That can—and will, inevitably—lead to criminals being wrongly released back into the public. I hope that that loophole will be fixed before the final version of the bill is voted on at stage 3.

Another subject that was brought up in the stage 1 report was the fact that the committee was “not wholly persuaded” of a need for Scottish ministers to have the power to release prisoners early. I will go even further than the committee: I am wholly persuaded that there is no need for ministers to have such a power. During the pandemic, there was a case to be made that the Government needed to make decisions of such a kind quickly, in response to a rapidly evolving public health landscape. However, now that we are past that time, I do not understand why we need to extend that power.

If it is wholly unacceptable for the Scottish Government to have the power of emergency release, why would it be justifiable for other Governments, such as the UK Government, to have such a power?

Jeremy Balfour

I am here to represent the people of Lothian. I have been elected to the Scottish Parliament. I want to see the best legislation here, for Scotland, and, in my view, it is not acceptable to have such a power.

Is it the case that ministers do not trust parole boards or our justice system more broadly to make decisions in line with the best interests of the general public, victims and even prisoners themselves? The process does not need to be in the hands of political actors. It should be controlled by those who are on the ground every day. Again, I hope that the Parliament can amend that aspect of the bill in the coming sessions.

Finally, Presiding Officer, I come to what I hope can be a point of agreement across the chamber. In 2015, Nicola Sturgeon said that she would end the soft-touch practice of automatic early release:

“Our objective remains to end the policy of automatic early release completely as soon as we are able to.”—[Official Report, 2 April 2015; c 19.]

We welcomed that commitment, as it represented a move away from a soft-touch system. Call me crazy, but I believe that, if a sentence is passed, it should be served. It is a strange world in which four years really means two. As I said, we welcomed that commitment from the First Minister. However, eight years on, the practice is still happening in Scotland. That looks very much like another broken SNP promise.

We want to give the Government an opportunity to rectify that. The bill is a perfect opportunity for it to follow through on its promise by ending automatic early release once and for all. I would be interested in hearing the cabinet secretary respond to that in his closing statement.

To conclude, there is potential to do good with the bill, but, because of the misgivings that I have outlined on ministerial overreach and the gap in the law that was identified in the stage 1 report, I will not vote for the bill today. If it goes ahead, I hope that we can work to improve it, and I look forward to playing my part.


Daniel Johnson (Edinburgh Southern) (Lab)

I feel the need to begin by pointing out to Jeremy Balfour that it was Conservative ministers in the 1990s who introduced automatic early release. We need to look at how that works, and we need sentencing that is clear. However, if we are to raise the issue, we need at least a little bit of acknowledgement of where it came from.

Indeed, we need to use this debate to face up to some stark realities. In a sense, we already have. Although we would all like to think that Scotland is a progressive country and that we tend to do things in a progressive way, when we look at our prisons and our prison statistics, we quite quickly get disabused of that.

As other members have pointed out, we imprison more of our population and use remand more than not only other European countries but the rest of the United Kingdom. Let us be very clear that that has been a long and sustained position. The data over the past 20 years has shown that the use of remand as a proportion of the total prison population has been around twice that in other UK jurisdictions. We need to ask ourselves why.

If we are looking at remand and release, we need to ask ourselves questions. With remand, we need to ask ourselves why we are doing it—and we do not have explanations. Why do we not have the data? Looking at the impact is critical. If there is one element that has not been looked at, it is what happens to people when they are on remand. It is about not only its use but the fact that, when people are on remand, they do not have access to purposeful activity. We are very often taking people who are charged with a lesser crime, putting them in prison with nothing to do and without the access to healthcare that sentenced prisoners often get, and putting them into contact with people who have committed much more serious crimes. What do we expect to happen?

The final question that we need to ask ourselves is about the purpose of remand. Ultimately, we need to acknowledge that sometimes we will need to put people in prison and use remand. However, the simple fact is this: only about half of the people accused of summary crimes end up with custodial sentences. We have already heard about the higher proportion of women than men in the remand population. For women, 70 per cent end up with non-custodial sentences. That is shocking. Until we adequately probe the reasons why we are using remand at the levels that we are, we will not make progress.

Likewise, we need to look at the critical elements in relation to release. Ultimately, it is the manner of prisoners’ release that will determine whether they go on to commit crime in the future. It is about their access to health and housing and their on-going means of support. I therefore welcome some of the proposals, but I worry that the bill runs the risk that many previous justice bills from this Government have encountered in that it is heavy on gesture and changing definitions but light on resource and systemic and structural change. That is where the bill goes wrong.

On bail, it is good that the bill will require recording of reasons. Although reasons are given in court, they are not centrally recorded—that was a critical part of the report that the Justice Committee in the previous Parliament looked at. There is no good reason for that. We found that many courts are using forms to record those reasons but that they are simply not centrally collated. That will be a positive step, as will the ending of Friday release.

As for the requirements in relation to social work, what is proposed is largely already happening. The problem is not that courts are not seeking that information—assessments of risk and background information on prisoners—but that those social work functions are not adequately functioning. The bill will not correct that.

Likewise, on the public safety test, when we spoke to sheriffs, when we undertook our inquiry in the previous Parliament, it was not that they were not applying it—they clearly were. Indeed, I would argue that one of the criteria in sections 23B and 23C of the Criminal Procedure (Scotland) Act 1995—whether a person will go on to commit crime while on bail—is about public safety. Those who know Fred Mackintosh KC’s political background may imagine that it is not often that I agree with him. However, he said that, if it is intended to be a change, it needs more detail; if it is not, it is pointless. I agree with him on that point, and I agree with the Lord President in questioning whether the bill will make any practical difference.

On release, again, it is good that there are plans. However, we critically need resource and minimum standards. In the previous Parliament, during the passage of the bill that is now the Management of Offenders (Scotland) Act 2019, I lodged amendments that would have required registration with a general practitioner, access to housing, access to proof of identity and access to means of support, whether through benefits or through applying for jobs. We need those sorts of guarantees and commitments in law. Without resource or those commitments, I fear that, although the guidance might address some things, prisoners will neither understand what they should expect nor be able to claim it and, frankly, we will make no practical progress in addressing those issues. If prisoners do not have the means to support themselves outside prison and if they do not have access to a GP, they will go on to commit crime again.

Where the bill really fails is in its failure to establish adequate alternatives to bail. In the Justice Committee’s inquiry in the previous parliamentary session, the clear message that we received from sentencers was that they use remand only as a last resort and that the absence of clear, credible and trustworthy alternatives to remand is the fundamental impediment to their using them. That is what the bill needed to put in place but does not, and it is why I will join my Labour colleagues in abstaining, at the moment, in the vote on the general principles of the bill because we cannot support them.

Ultimately, we need an effective justice system. The terms “hard justice” and “soft justice” are nonsense. We need things that work, so we need practical solutions and the resources that will enable the solutions to work.


Jackie Dunbar (Aberdeen Donside) (SNP)

I am pleased to take part in this stage 1 debate, and I thank everyone who has been involved in the scrutiny of the bill and the production of the report. I have not been part of the bill process but, like Liam McArthur, I have read and digested the report as much as possible.

Justice policy, and indeed how we treat people in custody, is a hallmark of our society. The Scottish Government has a proven track record of bringing about progressive change to Scotland’s justice system to ensure that it focuses on rehabilitation and improving the life chances of those who end up in the prison estate and that it has human rights at its centre.

The bill is the next step in that journey. It will ensure that the justice system is able to respond to increasing demand and that folk are not placed in the custodial estate unnecessarily, with all the disruption that that causes, as we have already heard.

The bill will make a big difference to the lives of folk who are affected by imprisonment, many of whom have adverse life experiences, and it will help to reduce reoffending, leading to fewer victims in the future. Many folk who are in contact with the criminal justice system have already experienced severe and multiple disadvantages, including homelessness, substance misuse, mental ill health and domestic violence or abuse. Individuals from the 10 per cent most deprived areas are overrepresented in prison arrivals by a factor of three, and that finding has been consistent across the past 10 years. Care-experienced folk are also disproportionately represented in the prison population. Around a quarter of the prison population in Scotland reports being in care as a child, and that proportion rises to just under half the prison population when we look specifically at young folk who are in custody.

Emma Harper (South Scotland) (SNP)

Listening to the debate today has made me think about a local case that I have been working on that involves a young person who is on remand. They could be on remand for up to 140 days, yet young people are not allowed access to any activities such as prison work or learning. Does Jackie Dunbar agree that the bill might enable some changes to be made to the current remand system so that young folk might be allowed access to certain activities while on remand?

Jackie Dunbar

I absolutely agree with Emma Harper. Young folk on remand should be allowed access to the activities that the general prison population of young people have access to. I would welcome the cabinet secretary’s comments on whether he agrees with us, which he might provide in his summing up—or perhaps the minister will sum up.

Scotland is a modern and progressive society. The Scottish Government’s overarching aim for the justice system in Scotland is to improve public safety, support victims and reduce victimisation rates. Evidence shows that that is best achieved by reducing crime, reducing reoffending and having fewer folk experiencing crime.

Keeping our communities safe and protecting victims must remain a priority for us all. However, we must also recognise the severe and multiple deprivation that is experienced by many folk who encounter the criminal justice system, and the damaging impact that imprisonment can have on individuals, their families and their wider communities. We must have smart, compassionate justice that emphasises the need to protect victims, ensures public safety and gives people who have offended the support that they need to make different choices in their lives so that they can make a positive contribution to their and our communities.

Too often, folk cycle back into the criminal justice system and into prison because they cannot access the support that they sorely need in the community. Collectively, we can do better, which is why the bill includes a focus on the support that is provided to folk who leave prison so that they do not reoffend.

I welcome the fact that the bill is aimed at making a real difference to the lives of individuals who are affected by imprisonment, many of whom have adverse life experiences. I particularly welcome the fact that the Scottish Government is funding trauma specialists to develop a framework for training staff to create a more trauma-informed and trauma-responsive justice system.

The new vision for justice recognises the prevalence of trauma and endorses a more person-centred and trauma-informed justice system. The Scottish Government has commissioned NHS Education for Scotland to create a knowledge and skills framework specifically to support a trauma-informed workforce in the justice sector. Victims must play a more prominent role in cases, experience fewer delays and be supported in their recovery. I ask for a commitment that that will be a central tenet of the bill, because we must keep that objective in focus.

The bill will improve Scotland’s justice system and will enable us to continue our journey to Scotland being a more progressive and caring nation. I support the Government’s motion.

We are in a position to be generous to the closing speakers. An extra minute or two can certainly be accommodated.

I call Pauline McNeill.


Pauline McNeill (Glasgow) (Lab)

Thank you, Presiding Officer. Jamie Greene is worried.

I begin by agreeing with Jamie Greene—I think that the committee’s report on the bill is a very considered report. I will be honest: the nature of the bill is such that it was a highly technical and difficult report to produce. There needs to be further discussion, not about what we all agree on but about how the bill could actually work. I want to say a bit about that.

To a person, we are agreed that Scotland’s remand population is extraordinarily high—it is the highest in Europe—but we do not even know why that is. We have some clues but, overall, we do not know why that is the case, and that is concerning.

We know that half of those people who are remanded in custody will not be found guilty. I find that figure disturbing. If they go on to not get a custodial sentence, we do not know why they were remanded in the first place. It is a big problem to solve. It is probably one of the most important issues in criminal justice policy to try to bring a resolution to. While people are on remand awaiting trial, as well as losing their liberty, they can lose their homes, access to their children and their jobs. Another member talked about the impact of the delays, particularly during Covid, and the extended number of days for which people can remain on remand, until the courts are brought back on to a proper timescale. That is extremely damaging.

There is a lot that we all agree on. The question is whether the bill in front of us, in its current form, would do much to change the culture that we are talking about. More important—I want to talk about this at length—is whether it provides the clarity that we require so that all of us, regardless of whether we agree or disagree with the provisions or aspects of them, understand what it is intended to do. That is one of my primary concerns.

The bill seeks to introduce a number of reforms to refocus how imprisonment is used. As has been said—Liam McArthur made this point really well—we have not got to the bottom of why the remand population is so high. That question is one that stumps leading figures across the justice sector. David Abernethy, the governor of HMP Edinburgh, said that it was a “mystery” to him why Scotland has such a high rate of remand. What is indisputable is that we need more data in order to understand the remand population as a whole. The only data that we have is around age and gender, so we need to do better on that.

One thing that is apparent to me—and to Fulton MacGregor, who talked about it today, and did so in the committee, too—is that there is obviously a need to strike a balance as to who we want to remand in custody, who we will let out on bail and who we want to be subject to bail supervision. When the members of the committee visited Glasgow sheriff court, we saw that sheriffs use the supervised bail conditions. That is a partial answer—actually, quite a big part of the answer—to the issue that we face, and I would like to have more discussion with the Government on the use of that option.

I want to focus my speech on my concerns about part 1 of the bill. From the outset, I have said that I have found these issues difficult to get my head around, so, although I have spent some time looking at them, I am happy to be corrected on any point of detail.

The focus of the bill is to limit the use of custody to those who pose a risk to public safety or to cases in which it is necessary to prevent a significant risk of prejudice to the interests of justice. There are clearly benefits to reducing the damaging effects of short-term detention, which we have talked about, but it is important to note that, according to the Government, the bill would still allow for remand in any case in the interests of public safety, including the protection of the victim. Further, any substantial risk that the person might abscond or commit further offences is to be included in the consideration. However, beyond that, there is quite a bit of concern about the detail of the way in which those provisions have been drafted.

The situation with regard to section 23D(3A)(c) of the Criminal Procedure (Scotland) Act 1995, which relates to domestic abuse offences, was not made clear to the committee—it was not clear to me, certainly. Only because we scrutinised the Domestic Abuse (Scotland) Act 2018 last week do we know that that section was put into the 1995 act just five years ago. I would have preferred it if it had been brought to our attention that something that was put into legislation only five years ago will be removed with the removal of section 23D of the 1995 act. At this stage, I am not for or against the removal; I am just pointing that out.

The Faculty of Advocates, the Law Society and others do not believe that a one-size-fits-all approach is appropriate, so they are quite content with the removal of that section, but victims organisations have concerns. I make a plea to the cabinet secretary for much more detailed discussion before we get to the later stages of the bill. If the Government is to proceed with the proposal, it must reassure victims organisations that there are provisions in the bill that can be used to deliver the outcomes that they want. At the moment, there is either disagreement or a lack of understanding about that point.

In my last few minutes, I want to talk about Lord Carloway’s letter, which has been quoted already by Katy Clark and others. Lord Carloway said to the Government that

“What is proposed in the Bill constitutes a highly structured and prescriptive staged approach.”

He also said that the proposed amendment to section 23B of the 1995 act

“introduces an unnecessary, cumbersome and artificial process.”

In the committee, we had an exchange about whether the issue should be dealt with through the provision of a definition or through guidance. However, what is confusing is that, in the extremely long transcript of the response from the senators of the College of Justice, which is attached to the letter from Lord Carloway to the Government, the judges say:

“If the concept of public safety is to mean, for example, the protection of the public from any offending behaviour, then the outcome regarding remand in custody may be little different from at present. If, on the other hand, it is to be understood as referring to safety in the ordinary sense (ie freedom from injury, danger or risk) then many offenders who appear in the summary courts charged with crimes of dishonesty or public disorder, and who pose a substantial risk of continuing to offend whilst awaiting trial, will require to be released on bail.

It is therefore clear that the proposal, depending on how exactly the concept of public safety is to be defined, has the potential to constitute a substantial narrowing of the court’s power to remand in custody.”

Judges are against the narrowing of those powers but, clearly, they are saying to the Government that, given the way in which the legislation is drafted, they cannot be sure what the Government is getting at, as it depends on how public safety is defined or what is said about it in guidance. They also say that they are not persuaded that there is any justification for further limiting the powers of the courts.

There also seems to be some clarity required on the question of whether someone who fails to appear can be remanded in custody. It appears not. Some of the examples that the judges give in their lengthy discussion touch on what they would do if there was a continued failure to appear. Under summary proceedings, but not solemn proceedings, a trial can proceed without the accused person being present, but that is not desirable. The judges say:

“Apart from anything else, the current proposal removes the court’s power to remand an accused in custody if he poses a flight risk.”

I appreciate that these are things that could be addressed in stage 2.

In respect of non-appearance, the judges say that there are certainly cases where the current law would oblige the court to grant bail.

There are 15 pages of that—I assure members that I will not go through all of them. Suffice to say that it needs to be addressed. It concerns me that the judiciary are not clear about what the provisions are expected to do, and it gives me some nerves that victims organisations—I am not saying that they are accurate in what they are saying—are nervous about the removal of some provisions.

Thank you for the additional time, Presiding Officer, because I really needed it.

In conclusion, we will abstain in the vote, but we are leaving the door open for further discussion at stage 2. We want to do something good, but we want legislation that is effective and whose intentions are understood by everyone.


Russell Findlay (West Scotland) (Con)

In the nine months since the bill was introduced to Parliament, the Criminal Justice Committee has consumed many thousands of words, written and spoken. There has been lengthy and often conflicting testimony from 26 witnesses, and there have been 32 published responses and 13 letters. Ten days ago, we published our 50-page stage 1 report. I thank the clerks, who do so much hard graft, which is often unseen.

Despite that vast volume of material, the committee has often struggled to get specific information that we needed and straight answers to our questions. Like others, I have found that incredibly frustrating. As MSPs, we are required to analyse, assess and stress test legislation, but we are restricted in getting basic facts.

In our stage 1 report, every single committee member—including SNP members—stated:

“we have faced challenges in obtaining accurate and clear information on the reasons for remand and the characteristics of Scotland’s remand population.”

What kind of way is that to legislate?

We have been here before with flawed and rushed legislation. However, putting aside my wider concerns about how the Parliament functions, I have serious worries about the bill, which are far too many to cover in my few minutes today.

One concern is about sentencing in relation to time spent on bail while subject to electronic monitoring. The bill says that two days of electronically monitored bail will be the equivalent of one day already served. That means that judges would be expected to deduct that bail time from whatever sentence they impose. That is quite different from the existing practice of judges in taking into account time served on remand when sentencing. Once the law says that the time in which a person sits in the comfort of their own home with an electronic tag on their ankle is the same as jail time, what might happen? I believe that every criminal in Scotland will find reasons to delay their trial, knowing that every two days in the house counts for one day off any eventual jail time. Churn already blights our courts—that change may fuel it. It risks worsening the chronic court backlogs. I believe that it will also further betray victims and erode public trust in what is often smoke-and-mirrors sentencing and what that actually means.

Many other valid points have already been articulated by my colleagues Jeremy Balfour and Donald Cameron. Jamie Greene spoke about the concerns of victims groups and the judiciary. Those who represent front-line police officers say that the bill would be

“unwelcomed by communities plagued by repeat offenders”.

I will address a contribution from a key supporter of the bill. The penal reform charity the Howard League Scotland has said that the bill is

“an opportunity to challenge the entrenched practices of some members of the judiciary who appear to accept the Crown’s opposition to bail applications too readily”.

It added:

“We would suggest that significant cultural change—particularly amongst some parts of the Crown and judiciary—will be required for these changes to take effect”.

I asked the Howard League Scotland representative to expand on that. It turned out that he was, in fact, as a part-time sheriff, a member of Scotland’s judiciary. However, to be frank, I am still no clearer about what was meant. The suggestion seems to be that m’learned friends are some sort of out-of-touch, regressive dinosaurs, even if those who believe that are unwilling or unable to offer any evidence to back it up.

The same witness also used a phrase that I think goes to the nub of what this bill is really about: “risk appetite”. Radical changes to bail and a reduction in imprisonment will come at a likely cost to communities, which is more crime, more victims and more misery. Do the people of Scotland share that risk appetite? I do not think that they do and I do not think that they should.

That brings me on to the issue of cost, which was described by one witness as

“an elephant in the room”.—[Official Report, Criminal Justice Committee, 14 December 2022; c 6.]

Stretched criminal justice social workers will be burdened with even more work. The bill’s financial memorandum can be summarised as saying, in effect, “Don’t worry, it won’t cost much,” yet witnesses warn that the Government has significantly underestimated the costs. COSLA calls for a “detailed financial assessment” of the impact on councils before the bill is enacted. Daniel Johnson made those points about cost very well.

We do not even know whether criminal justice social work will form part of the proposed new national care service. Kevin Stewart admitted to the committee that he is spending £80,000 of taxpayers’ money on a private contractor to answer that question and, depending on who the SNP members decide will be the next First Minister, there might not even be an NCS.

There are many more concerns, which are for another day. However, to conclude, we do not have the information that we need; we do not know the intended purpose of the bill; we do not know what problems it seems to be trying to fix; and, whatever those problems are, we do not know how they can be quantified or fixed. Some people say that the bill is game changing; others say that it will change nothing. Some say that it will help to ease the court backlog; some say that it will make it even worse. We do not know how much it might end up costing taxpayers. This Government likes to talk about what it calls “smart justice” but there is absolutely nothing smart about this half-baked approach to law-making. Social experimentation, flying blind, tinkering—call it what you want—it speaks to a Government that is out of ideas and out of touch.

I note that Labour will abstain today, despite one of its two committee members opposing the general principles of the bill. Our party cannot support the bill but we commit to working constructively to improve it.

I call Keith Brown to wind up. You have around 10 minutes, cabinet secretary.


Keith Brown

Thank you, Presiding Officer, and, honestly, thank you to everyone who has spoken today. I welcome the support that has been expressed for the bill’s key aim of refocusing how we use imprisonment in Scotland. I also express my thanks again to the Criminal Justice Committee, the Delegated Powers and Law Reform Committee and the Finance and Public Administration Committee for their consideration of the bill and to all those who have contributed as witnesses.

I will turn first to the points that have been raised during the debate. I regret that we will not have the support of the Conservative Party, although I have to say that it was my expectation that we would not have its support. I predict that we will not have its support for any proposal that we make to progress justice in Scotland during this session of Parliament. Any proposal will be opposed regardless of, for example, the fact that in this case we all agreed on the need to try to tackle the remand issue just over a year or so ago. However, that seems to have gone by the board.

If people need any evidence of the futility of trying to work with the Conservatives, they can listen to the speech that has just been made, which was, essentially, the single transferable speech that we get from Russell Findlay every time he gets to his feet. It was a tabloid-type tirade—just look at some of the words. He said that the bill would result in more crime and more victims and more misery—that was his considered response to the proposal that we are making here.

Does the cabinet secretary agree with Victim Support Scotland, whose evidence was indeed that the bill would lead to more crime in our communities?

Keith Brown

The member mentioned a number of witnesses during his speech, many of whom had different points of view from other witnesses, even within the judiciary. Different views were indeed brought forward, but what we heard from Mr Findlay was a point-by-point attack on every part of the bill; there is no way that we will arrive at any consensus or have any reasonable discussion in relation to it.

Russell Findlay rose—

Keith Brown

I am sorry, but I have to try to make some progress. I note that, unfortunately, Mr Greene would not take an intervention from me, even though he was given more time to make a speech than I was and had three minutes left when I asked to intervene.

There was nothing positive or constructive from the Conservative Party. A number of members said that the issue of remand is very hard; indeed, many people have tried to get to the bottom of why the remand figure is so high. We have to try to address that issue, but nothing whatsoever was suggested by the Conservatives. The member ended up saying that the approach was “half-baked”.

Let us not fool ourselves: there is no point in trying to have a discussion with the Conservatives on these justice measures as their attitude will not change. It leaves the rest of us with the opportunity and the obligation to try to see where we can make progress on the matter.

I listened to the comments that were made by a number of Labour members, in particular to those of Daniel Johnson, with whom it was hard to disagree, even when he made trenchant observations about the proposal.

I know that he was unable to stay, but Liam McArthur made a very good intervention, too, and I am grateful that the Liberal Democrats will be supporting the general principles of the bill.

I come to the concluding points that Pauline McNeill made. There is no piece of information that I have said that we will not provide; there is no unwillingness on the part of Government to discuss the issues. In fact, she knows that I took the initiative this week to speak to her about some of the issues of concern. I will continue to do so, as I have done throughout my various appearances at committee, in my responses to it and in the discussions that I have had with members. There has been no unwillingness. I do not gainsay her point that she feels that more needs to be said and more information needs to be provided.

Although the Government has to be careful when it provides data, I understand, too, the point that Pauline McNeill and a number of other members made about data. It might help provide more information that might help us better understand why we currently have that high prevalence of remand.

The point that Donald Cameron made about the backlog was true—that is not unique to Scotland, however, because jurisdictions everywhere have problems with the backlog that Covid has caused. The member could at least acknowledge that going from 44,000 to less than 30,000 summary cases in the space of 18 months shows some progress towards reducing that backlog.

It is also true, as Rona Mackay said, that issues exist around section 23D. I am happy to listen, as she asked that I do, to some of the concerns around the removal of that section. However, its removal is the exact opposite of what Jamie Greene suggested about interference with the judiciary. Both the Faculty of Advocates and the Law Society of Scotland have said that the removal would increase the scope of the courts to deal with those issues, as the section currently limits that scope.

I go back to Jamie Greene’s comment about the proposal undermining judicial independence to some extent. It is clearly the case that judges interpret but do not make the law. The latter is the role of Parliament, and we cannot absolve ourselves of the responsibility to make law because another part of the state—here, the judiciary—might have observations that contradict the process; indeed, we still have to take decisions on the law.

I do not think that Lord Carloway would say that there is an intention that the removal of section 23D will affect judicial independence. It is important to remember that we are giving more power to the courts in relation to those issues and that it is right that we should do so—indeed, that is one of the observations that we have heard.

Katy Clark

When I intervened on Rona Mackay, she was of the view that the bill would not lead to more people who are charged with violent offences being given bail. Does the cabinet secretary think, however, that more of those who are accused of non-violent offences or who are, based on their history, a potential flight risk will be likely to get bail? Has there been any modelling done on those issues that he is able to share with the Criminal Justice Committee?

Keith Brown

It is impossible to predict future decisions of the court, but I go back to the purpose of the bill, which is to refocus the use of remand.

I highlight something that was said at the Criminal Justice Committee; I think that Katy Clark would have been there. It might have been Jamie Greene—I am sorry if I am wrong on that; it can be proven correct or otherwise by referring to the Official Report—who said that around 66 per cent of cases had to have remand for public safety or other reasons. If that is true—it is a relatively reasonable observation to make—it means that a third of cases do not have to have remand.

Of course it is not possible to predict future decisions of the independent court system, so I am not able to make such a prediction. I simply say that the reasons for introducing the bill are about refocusing the use of remand.

I also remind members of the deleterious effects of remand. Someone may not be guilty of the offence with which they have been charged, and there will be an impact on their family, their job prospects and their community. It is also worth bearing in mind that it costs nearly £40,000 a year to keep somebody in the prison service. Daniel Johnson and others made points about the fact that there are other disposals available. I understand that the judiciary has to have faith in those disposals, and we have—and we will—put more money into that. However, it is surely a better process—

Katy Clark rose—

I see that Katy Clark wants to intervene again—I am happy for her to do so.

Katy Clark

I appreciate that the member will want to get through his contribution, but I ask him to clarify something. Does the Government intend that there should be a reduction in the number of people who are charged with non-violent offences, and in the number of people who are currently considered a flight risk, who are remanded? The committee has struggled with understanding what the Government’s intentions are and what it is trying to achieve.

Keith Brown

I can only repeat what I said to the member before: the Government’s intention is that remand should be used where it is most appropriate and should not be used where it is not appropriate. Members from all parties have given examples in which they believe that remand would be inappropriate. We are trying to reduce the number of cases in which that happens.

On the point about flight risk—or, in other cases, the potential victimisation of witnesses or victims—we have to ensure that we protect people from that. Beyond that, we have to consider things that might have an impact on the judicial system, such as the intimidation of juries. Those are situations in which remand should legitimately be applied.

On the definition of public safety, I am happy to listen to any issues that people have in that regard. However, I have looked into the matter in some detail, and there does not seem to be a great deal of doubt—to go back to Carol Mochan’s point—around what people think is meant by the words “public” and “safety”. I am not sure where the doubt creeps in. Some of the people, such as lawyers and others, who are involved in the process seem quite keen on, or certainly seem comforted by, the idea that the term “public safety” will cover the cases in question. One may want to move to prescribing that in law, but that can often have unintended consequences, which I am sure that members would not want to see.

Daniel Johnson

Some people may wonder if the Government is trying to draw a distinction in respect of the risk of somebody committing a further crime that does not include harm to another individual.

Is the Government’s intention that remand should be considered only where it is likely that the individual would commit harm if they were bailed, whereas the importance that is placed on the risk of someone committing further crime in deciding whether to grant bail or put a person on remand would be reduced?

I ask you to draw your remarks to a conclusion, cabinet secretary.

Keith Brown

Somebody mentioned an example to me just now—off the record—of a person being put on remand for shoplifting. Usually, such cases that are highlighted involve a woman.

The member and others have made the point that we have too many women on remand, and that the proportion is even higher, given that women comprise only 4 per cent of the prison population. We are trying to reduce the number of examples like that. However, where there is a risk of violence to an individual, that is of course in the realms of public safety, as is the question of intimidation of the jury. If we leave those decisions to the court, albeit with the bill’s renewed focus with regard to when remand should be used, we can ensure both that public safety is looked after and that nobody is on remand who does not need to be.

With that, I am happy to propose that Parliament agrees to the general principles of the bill. I am grateful to the Liberal Democrats for their support, and for the support of the Scottish Green Party, as we heard from Maggie Chapman. I will continue to listen to and engage with the committee and with members on all sides of the chamber as we move forward to stage 2.