Chamber and committees

The cabinet secretary will know that all pupils missed five days of school due to strikes but that pupils in targeted constituencies, including those in the First Minister’s constituency of Glasgow Southside, missed a further three days. Some Scottish Labour members, including me, have been contacted by pupils who are worried about how that will affect their exam performance and about how exactly the SQA will take that into account. When my colleague Michael Marra raised the issue with the cabinet secretary, she said that she was engaging with the appropriate local authorities to understand the impact of the action on their schools and to explore what further actions can be taken—

It is for Karen Reynolds and Justina Murray, if that is okay.

Good morning, minister. People on the earlier panel, who were really excellent, were trying to pinpoint priorities for what needs to be fixed and where the gaps are. A couple of things came out of that discussion: first, an issue exists about recruitment and the funding of posts—some of the posts are temporary, so staff are not applying for posts that need filled; and, secondly, the whole funding process seems so bureaucratic that it seems to me that simplifying it might be an important step. What do you think about those two points?

Thank you for your presentation, which was really informative.

Reading through all the information that we have been given, we can see that the plan and law reform are needed and that we have additional Government funding of £50 million a year. How wisely is that money being spent or being planned to be spent?

There are a lot of priorities. One of the key points for me is that men are by far the biggest cohort of people who are losing their lives. Is the money being directed in the right way? Can we see where it is being spent? Are you, as the experts in the field, clear that the £50 million is being spent in the right places?

I feel that the committee needs help in drilling down into that. Karen Reynolds talked about where the money would best be spent. Justina Murray said that there is not a shortage of money. Can you help the committee with that? From what people are saying, there does not seem to be a clear picture of where the money should be spent to get the results that you want.

Lots of pleas have been made about the importance of residential rehabilitation and connected services. Is that an important starting point to fix this? As a legislator and a committee member, I am struggling to understand what it is that you want to say to me about that. Where should we push Angela Constance to get results with the money that you say is available?

I will follow that up with a specific question. What progress has been made on expanding residential services? I know that that is only one part of the picture, but it is an important part. Has there been an expansion of services? Can you tell us now, or will you be able to tell us later, what exactly that amounts to?

To ask the First Minister whether the Scottish Government will provide police with access to all correspondence, transcripts, meeting notes and other communications with ministers, its officials and the Scottish Prison Service, to assist with the investigation regarding the Allan Marshall case. (S6F-01928)

Since I first read of the death of Allan Marshall, who died in March 2015 as a result of injuries that he had sustained four days earlier, while being held on remand at HMP Edinburgh, I have vowed to do all that I can for Allan’s family.

The First Minister knows that the closed-circuit television footage from the prison showed that Allan, naked and face down, was dragged by the feet along a corridor by 13 prison officers. The officers who were involved were given immunity from prosecution and, in the eight long years since his death, Allan’s family have been waiting for answers.

Press reports indicate that some of the prison officers were branded “consistently dishonest” at the inquiry but were able to retire on full pensions without any stain on their service. The “Independent Review of the Response to Deaths in Prison Custody”, which was discussed recently in the Parliament, recommended that families should have “unfettered access” to information about a death in custody.

Does the First Minister agree that the Allan Marshall case was a shocking episode in Scottish justice? Of course, I fully appreciate that it is a matter for the Lord Advocate, but does the First Minister agree that future Lord Advocates need to look at the outcome and mistakes of that case before granting immunity? I call on the Government—I think that it has said that it will do so—to implement in full the recommendations of the “Independent Review of the Response to Deaths in Prison Custody”.

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.

Scottish Labour welcomes the debate and commends Baroness Helena Kennedy and her working group for their excellent report on misogyny, as well as the work that the Scottish Government is clearly committed to in this Parliament.

Labour will support the Government’s motion and the amendment in Jamie Greene’s name. I appreciate the remarks that the cabinet secretary made about the complexity of the issues and the spirit of our amendment, and I put on record my appreciation that it will be accepted. That is important in the light of what Jamie Greene said in his excellent speech. We have a lot of work to do, and finding consensus is really important.

Despite, I have to say, my earlier cynicism when the Scottish Government voted against sex being an aggravator in the Hate Crime and Public Order (Scotland) Bill, I can honestly say that I found the recommendations compelling. The work that we are about to undertake is vitally important. It is high time that we tackled misogyny across Scotland. It is shocking that we find ourselves in such a situation in 2023. Through the examples that he used, the cabinet secretary illustrated clearly and well what we are driving at.

I will use an example, not because it is not from Scotland, but because of how recent it is. Just yesterday, Channel 4 News revealed that a member of the Metropolitan Police’s elite firearms unit is currently under investigation for allegations of serious sexual misconduct after it was alleged that he filmed two women without their consent while having sex. He then allegedly shared the footage on social media. Scotland has also had issues with its own elite firearms unit. That illustrates that, unfortunately, we face this everywhere.

Last week, a disgraced reality TV star was imprisoned for 21 months for disclosing private, sexual photographs and video footage of his ex-girlfriend on social media without her consent. I appreciate that there are particular challenges when it comes to social media, but it is important to include it in the conversation.

For completeness, the former commissioner of the police in England, Vera Baird, said that these behaviours “don’t develop in a vacuum” and are, in fact, a consequence of the widespread nature of sexism and misogyny in our society. We know that, for centuries, misogyny has upheld

“the primary status of men and a sense of male entitlement, while subordinating women and limiting their power and freedom.”

It is also important to note from the report that misogyny goes beyond hatred and is about undermining women’s position in society by belittling them and calling them names, and through the use of language.

I highlight again the cruel murders of Sarah Everard, Sabina Nessa and Nicole Smallman, because they remind us that, in those cases, men set out specifically to murder women. Unfortunately, there was a mindset of hatred involved in those crimes.

What is striking about Baroness Helena Kennedy’s report is the size and scale of the problem. The working group uses excellent language to illustrate really well what we are trying to achieve. In particular, as the cabinet secretary said, the recommendations include looking at the creation of a “gendered law” that is intended to protect women and girls in particular. It would be hugely significant if we could get to that point. The law prefers to operate on the basis of neutrality in most cases, which means that most laws are available to men and women, but such a law would be aimed specifically at women, and we would whole-heartedly welcome that. According to Baroness Kennedy’s report, the belief in a neutral approach

“disguises the reality that there are particular kinds of behaviour which target women”

simply for existing as women.

We might assume that society is becoming more progressive on gender equality. However, I highlight a piece of research—it is only one, but it is worth highlighting—that was carried out by Ipsos UK and the global institute for women’s leadership at King’s College London. It found that the majority of young people in Britain now believe that women’s rights have gone too far. Some 52 per cent of generation Z and 53 per cent of millennials said that society has gone so far in promoting women’s rights that it is “discriminating against men”. To be honest, I have heard that a few times in my lifetime, but I am sad to read it now. It illustrates the extent to which—I am sure that Christina McKelvie will make this point in summing up—the issue is not simply about changing the law, as we need to go a long way on changing attitudes before we can make any real progress.

As I have said in previous debates, it is also important to include in the law provision to address the gaps around gender-based cybercrime. Certain men have been unscrupulous in using methods to lure boys and young men only to instil in them shocking attitudes towards women. That is quite appalling. We know that, in schools, sexist bullying and sexual harassment are very much underreported and

“are normalised, everyday occurrences”.

They are often positioned as “a joke” and are therefore not often reported.

We are all responsible for calling out sexist attitudes and condemning misogynistic behaviour in our daily lives. As we have said before in this Parliament, it is especially up to men to reflect on and change their behaviour. I welcome the approach that the cabinet secretary has taken to that in saying that you are not living a real life if you have not heard such attitudes in your own personal circles.

Jamie Greene made some important points. I make it clear that Scottish Labour is totally up for working with the Government on this important piece of legislation, which will be instrumental in implementing four or five big recommendations.

The non-legal definition of misogyny for the purposes of the report was helpful, but our job is to ensure that we turn that into a workable legislative framework. If that is done properly, we will have one of the few laws in the world that is aimed primarily at women and for women. It would be a huge achievement and a huge step towards achieving gender justice.

In closing, I note that the heart of the matter is to ensure that the detail of the legislation will stand up and be respected; that it will be seen as useful and helpful by the legal profession and those who have to work with it; and that it will contain clear provisions that can be used in our courts to protect women and girls.

I move amendment S6M-08159.1, to insert at end:

“; appreciates that this is complicated work that needs scrutiny, but regrets that it has taken so many years only to get to consultation level; recognises how important wider education is, particularly for young people, to generate the fundamental shift in attitude that is needed, and notes the importance of recognising the toxicity of social media.”