Chamber and committees

Sorry.

I really appreciate that answer. For the record, I did not have a strong view for or against that proposal at the time, and I do not have a strong view now. I simply note that it was quite controversial, although I take your point that things have moved on. Thank you for your answer.

I want to ask Gillian a follow-up question. You highlighted that the bail supervision assessment is a potential weakness, because it looks at individual needs and not at wider risks to the public. I was really interested in that, because we have been asked to consider a new test.

Given what you said, does a change need to be made to the way in which things work? Who is best placed to advise the court on the wider risk to public safety? Perhaps that is a Risk Management Authority question. Do you have a view on whose job that would be? Would you have to change the kind of information that you process because of the new test?

I want to come back in on that to try to understand it. In a public safety test, where the question is whether someone poses a risk, are you suggesting that we need to add something into the bill about considering what risk the person poses to the community if they have a level of support? Those are two entirely different questions. That is not what is in the bill currently, although what you are saying makes sense. Of course, that is for repeat offenders, but the same test would apply for a first-time offender, would it not?

Good morning. I will start by asking Lynne Thornhill about the threshold. I am still trying to get my head round the test, so bear with me; I am not certain that I have understood it correctly. As other members have said, the committee has previously questioned the high levels of remand. The Cabinet Secretary for Justice and Veterans said that one thing that the Government would do is introduce the Bail and Release from Custody (Scotland) Bill to change the test and give sheriffs more scope to make decisions that do not involve remanding people in custody. We have received submissions, including from the Crown and the judiciary, who had serious concerns about the initial provisions. The Government therefore adjusted that threshold test. My understanding is that the concern that sheriffs and judges have is that the test has been changed from a public interest test to a public safety test, and the problem is about who defines “public safety”. That is the context for my questions.

I am having difficulty understanding the evidence that I have just heard, because it does not really fit with what I am trying to get my head round. For example, in answer to Jamie Greene, Lynne Thornhill said that there was one piece that is likely to open up, and I did not fully understand that. The provision is designed to give sheriffs some discretion, but their concern is about how they can use that discretion if they do not have a framework for making the decision about what public safety is. Is criminal justice social work’s information, which we have been talking about, integral to a sheriff using that threshold when they are making a judgment about what “public safety” means, as someone has suggested? However, if someone does not have a criminal record in the first place, how can that public safety test be used?

I will ask the others to answer that question in a moment. You have given the example of a repeat offender. Using the public safety test, how will third sector organisations or criminal justice social work help a sheriff or judge to make a better decision on someone? How will that work? What information would you provide for a judge?

Tracey, would you like to add anything?

Do Tracey McFall and Charlie Martin want to come in on that?

That is helpful. Put simply, is it fair to say that to take those powers away from the Lord Advocate and the Scottish criminal justice system and place matters entirely in the hands of the commission would place too much trust that the commission would achieve its objectives and not undermine any interest that we might have in Scotland?

That was a helpful contribution from Jamie Greene. I start from the viewpoint that the commission’s central purpose is a good one in principle. However, if it achieves what it wants to do, it will have wide-reaching implications, especially in indemnifying anyone against criminal prosecution and, as we have heard, civil proceedings.

I am clear in my own mind now, having read the DPLR Committee’s report and listened to the cabinet secretary. That committee noted that

“There is no requirement in the Bill that the UK Ministers obtain or seek the consent of the Scottish Parliament or Scottish Ministers before exercising the powers in the Bill within the Scottish Parliament’s devolved competence.”

It is important to uphold the principle that Westminster should seek the consent of this Parliament when seeking to do something on a UK-wide basis that is within the competence of the devolved Parliaments, such as criminal legislation. That principle needs to be upheld.

There is a lot to consider in all this. There are a number of substantial issues and, for that reason, I would like us to take more time. I am sympathetic to the Government’s position, now that I have heard it, but I would like us to take time over it in order to balance the overall objectives against some of the principles. However, it is really hard to overlook that principle because, at the end of the day, if we were to give up the powers of independence of the Lord Advocate, we should seek Parliament’s consent to do so.