Chamber and committees

Thank you.

We are living in difficult times, and they are particularly difficult for working people, given the pressures of food and fuel inflation. Andrea Bradley, it is quite clear that, in some sectors, and in the private sector in particular, trade unions have got some very good deals, particularly after industrial action, and that might be associated with labour shortages. How can a tight labour market lead to improvements in family-friendly working? I appreciate that you are more involved in the public sector, but perhaps you can speak in the round about both the public and private sectors.

Yes, and they obviously lose pay when they do that.

I will bring in Karen Hedge on the care issue. We hear regularly about people leaving the care sector, perhaps to go into other sectors such as retail because they will earn more there. What scope is there for increasing flexible working for front-line workers, particularly in the care sector?

I am pleased to close the debate on behalf of Scottish Labour. We wish to see a reduction in the use of remand in Scotland, a greater role for alternatives to custody, more justice social work involvement and better throughcare. However, we do not believe that the significant concerns about the bill that have been raised with the Scottish Government by the judiciary and victims organisations have been addressed, or that the bill will achieve its policy aims.

We accept the view of many legal practitioners that the lack of a definition of the new public safety test in the bill will lead to more uncertainty and appeals. We note the strong opposition to the bill from Scottish Women’s Aid, ASSIST and Victim Support Scotland and their concerns about the implications of removing section 23D of the 1995 act.

Although we have heard conflicting evidence on the wisdom of removing that section, we do not understand why the Scottish Government is lowering the threshold in those most serious cases where the accused has analogous previous convictions, as those are the cases where remand is most likely to be appropriate. Indeed, it was as a result of bail being granted in such a case that those provisions were originally enacted, when the accused who had been granted bail then committed offences of abduction, rape and murder.

We have repeatedly asked the Scottish Government for examples of what kind of accused who are currently remanded would be granted bail if the bill passes, but that detail has not been forthcoming.

We believe that there continues to be a lack of robust alternatives to remand available to the courts, and we support the development of more forms of supervised bail. Electronic monitoring has been less used in recent years in Scotland compared with other jurisdictions, and we believe that there is great scope for greater use of electronic monitoring as a bail condition to avoid remand. However, having spoken with Victim Support Scotland, we share its concerns about the current lack of tracking and monitoring that is associated with electronic monitoring, and we support the need for GPRS systems, so that there can be tracking.

We also share the concerns of legal practitioners with whom we have spoken about the lack of a definition of the public safety test in the bill. At stage 2, I lodged some probing amendments with potential alternative wordings and called on the Scottish Government to provide a definition. However, we have accepted the advice of those in the legal profession who believe that it is safer to retain the current bail test, which is settled law, and which, of course, provides a presumption in favour of bail in most cases.

We remain unconvinced that this bill will achieve its aims with regard to reducing the remand population, and we believe that many of the concerns that have been raised are legitimate. Although there is much that we agree with in part 2 of the bill, most of those provisions do not require legislation and could be delivered now by the Scottish Government within the current legislative framework. For those reasons, we will not support the bill in the final vote.

My understanding is that the bill is a positive piece of legislation but that there has been much criticism that it could be stronger. Either today or perhaps in writing to the committee, can the Scottish Government outline what further changes it thinks need to be made to the bill at Westminster to provide a stronger statutory framework?

Amendment 68 focuses on the resources that local authorities need to provide justice social work. It requires the Scottish Government to report on the operation of section 1 of the bill and the impact on local authorities, particularly on whether they have adequate resources to meet the requirements of the legislation, whether further resources are required and, if so, what action needs to be taken to address that.

Amendment 68 would require the Scottish Government, in the preparation of the report, to consult local authorities and any professional bodies that represent social workers. The background is that funding for justice social work has been flat for the past three years, which is a real-terms cut of £86.5 million. Social Work Scotland said that

“members report that waiting times for assessments, support and treatment are all increasing, and in some social work teams over 30% of posts are unfilled”.

Unison Scotland said that justice social workers are faced with some of the highest case loads and that many local authorities are scaling back social work services as a result of real-terms cuts in local government funding.

It is clear that the Scottish Government wishes to enhance the role of justice social work in the provision of information to the courts. Scottish Labour also wants that, but it is difficult to see how it can happen without additional resource. When I lodged the same amendment at stage 2, the cabinet secretary acknowledged the budgetary challenges and said that the introduction of the legislation would be phased. However, the financial memorandum does not recognise the serious cost and resource implications of the proposals. It is not possible to lodge amendments to require the funding that is needed for adequate resourcing, so amendment 68 has been lodged to ensure focus and scrutiny on the resourcing issues.

Amendments 76, 77 and 80 would require the Scottish Government to give more information about women on remand.

We know that Scotland has high numbers of women on remand and that that is not because women in Scotland are more violent than women in countries that do not have as many women in custody. There has been concern over many years about the number of women in Scotland who are sent to prison for non-violent offences.

We also know that women prisoners are a significantly different demographic from male prisoners. A recent study shows that almost 80 per cent of the former had suffered head injuries as a result of domestic abuse. We know, too, that many women have caring responsibilities. Legislators need as much information as possible about women who are refused bail to better scrutinise the justice system.

Amendments 76, 77 and 80 are modified versions of amendments that I lodged at stage 2. I thank the Scottish Government for working with me on the wording of the amendments to ensure that the data that is asked for is available.

Amendments 78 and 81 are also similar to amendments that I lodged at stage 2. They ask the Scottish Government to report to Parliament

“Within 3 years of Royal Assent”

on the health issues, including drug addiction issues, of women who are being held on remand. Again, that is a less onerous requirement than those that were sought in the amendments that I lodged at stage 2. I hope that the Scottish Government will be able to agree to my amendments on this occasion.

Amendment 82 also involves a reporting requirement. It focuses on the alternatives to custody that are available to the courts in Scotland when they are considering bail applications. For Scotland to reduce the number of prisoners who are held on remand, we need to develop more robust alternatives to custody, including a range of supervised bail options. I should say that the Convention of Scottish Local Authorities supports amendment 82.

The amendment asks the Scottish Government to consult local authorities and others and to report to Parliament

“Within 3 years of Royal Assent”

on the work that is being done to develop further alternatives to remand so that accused persons, whenever possible, can be kept in the community, pending trial. That would include information on the resources that are being devoted to ensuring adequate resourcing of the services that are needed to ensure that bail conditions are complied with. We know that there is currently considerable criticism by victims organisations of the implementation of the tracking of electronic monitoring, for example.

The report would focus on the resourcing of non-custodial alternatives to remand. In many other countries, such as the Scandinavian countries, there is far greater use of alternatives to custody, such as GPRS electronic monitoring and supervised bail. We believe that there is considerable scope for those alternatives to be expanded in Scotland.

I move amendment 68, which has the support of organisations such as the Convention of Scottish Local Authorities. The provision of justice social work and the cuts to justice social work budgets need greater scrutiny, and I therefore urge members to support the amendment.

Amendments 72 and 74 would remove sections 2 and 4 from the bill. That would, in essence, maintain the current bail test, which in the vast majority of cases includes a presumption that the court will grant bail. The approach that I am taking is similar but slightly different to that proposed by Jamie Greene.

Scotland has the highest number of people in prison and the highest remand rate in Europe. The figures that were provided to the Criminal Justice Committee show that almost 30 per cent of the male prison population is on remand and that, in the women’s estate, 37 per cent of women are remand prisoners. It has to be said that that is not because Scotland is a more violent country than comparable countries. Our contention is that those high remand rates are not because of the law or the bail test that we are discussing, but because of a lack of robust alternatives to custody being available to the courts. In addition, it is clear that decisions of Parliament to extend the time limits relating to criminal cases and, perhaps, culture might be other reasons. The pandemic clearly increased the number of people who are being held on remand, but Scotland having extremely high remand figures is a historic issue.

The Criminal Justice Committee first discussed the bill at our away day last August, and although we have taken extensive evidence since then, we have been unable to find evidence about how changing the bail test from a public interest test to a public safety test will reduce the number of people being remanded. The current test has been in place for many decades and is settled law. What the Scottish Government is proposing

“is likely to make submissions to the local sheriffs lengthier, increase the time taken to determine the issue of bail, result in some accused persons being detained unnecessarily while inquiries are carried out, produce more errors, increase the opportunities for appeals and add to the heavy burden on the sheriffs and the staff who are tasked with the management of what can be extremely busy custody courts.”

Those are not my words but the words of Scotland’s senior judge, Lord Carloway, in his submission to the Scottish Government on behalf of judges.

Pauline McNeill and I have spoken to dozens of practising lawyers about the proposed new bail test and it is clear that what the Scottish Government is proposing does not have the support of victims’ organisations, it does not seem to have the support of the judges and, from the discussions that we have had and the evidence that we have taken, it does not seem to have the support of the legal profession. Pauline McNeill and Jamie Greene have also referred to the submission that I have just referred to, which said clearly that the proposed new bail test introduces

“an unnecessary, cumbersome and artificial process”,

and that it is

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

When we are scrutinising the bill, we need to look at whether the law will make it easier for the courts to make decisions and make the law more certain. It is far from clear how the Scottish Government believes that changing the bail test in the proposed way will either reduce the remand population or, indeed, make it clearer to the courts what Parliament intends.

We believe that, instead, the focus should be on developing more robust forms of supervised bail and electronic monitoring.

As the cabinet secretary said, amendment 74 is consequential to amendment 72. It seeks to remove section 4 of the bill. During the Criminal Justice Committee’s evidence taking on the bill, section 4 was opposed by victims organisations, as it fails to provide complainers with an explanation of why bail is being granted. In addition, as we heard already, many parts of the legal profession are opposed to the proposals that are outlined in section 4. We believe that section 4 is unnecessarily onerous and that it would extend the length of hearings.

On those bases, I urge the chamber to support my amendments.

I will focus on amendment 61, which, as the cabinet secretary has indicated, relates to the multi-agency public protection arrangements, which are better known as MAPPA. They impose a duty on responsible authorities in a local authority area to establish arrangements for assessing and managing the risks that are imposed by certain categories of offender.

I lodged the amendment after the campaigner Linda McDonald got in touch with me several months ago. She was brutally assaulted by the convicted murderer Robbie McIntosh in 2017 while walking her dog. The attack took place after Mr McIntosh had been let out of Castle Huntly prison for a week, ahead of a Parole Board for Scotland meeting. He pled guilty to assault to severe injury, permanent disfigurement, permanent impairment and danger to life and attempted murder, and he received an order for lifelong restriction.

Ms McDonald must be commended for the grace and immense bravery that she has shown in the light of the attack. She has been petitioning to drive change in the parole system to prevent dangerous offenders from being released without sufficient monitoring through her Justice 4 Linda campaign.

Multi-agency meetings began taking place in relation to Mr McIntosh as early as 2016, but key management decisions were not recorded and no clear action plan was made. Despite Mr McIntosh eventually undergoing a risk of serious harm assessment, no risk management plan was put in place. In the period when he was on home leave, the local policing team was not made aware that he was on that leave.

Ms McDonald has since received an apology from the Scottish Government, and a review of the updated policy and guidance for risk management teams was completed in 2020. However, there is now scope to tighten legislation in the area.

Amendment 61 stipulates that level 3 MAPPA prisoners be monitored in the same way as equivalent offenders, with regular check-ins with police and justice social work. The amendment would require ministers to review and report on the impact on MAPPA of part 2 of the bill as enacted. That would require consideration to be given to whether changes to national guidance were required and to how MAPPA offenders were monitored after release from custody, and it would ensure a consistent approach across Scotland.

As the cabinet secretary said, I moved the same amendment at stage 2. At the time, the cabinet secretary argued that the timescale of one year that I initially suggested would not be workable. I therefore amended the wording of the amendment to “3 years”, and I am disappointed that the Scottish Government feels that it is not able to support it.

I intend to move amendment 61.