Chamber and committees

The fan-led survey announced that fans want action on venue closures, ticketing and audience safety, and that they want further support for grass-roots music venues. Not surprisingly, 93 per cent of fans agreed that there should be a £1 ticket levy on arena and stadium live-music events to fund grass-roots venues. Further, 85 per cent of fans believe that there should be a restriction on new residents filing noise complaints near existing venues. That is an old issue, and it is one that impacts my Glasgow region in relation to Barrowlands and King Tut’s.

Will the cabinet secretary set out which issues raised in the survey, including the ticket levy, the Government can support? I agree that Scottish people love their live music, and it would be good for the Government to be seen to be active in delivering such support.

To ask the Scottish Government what assessment it has made of Scotland participating in a United Kingdom-wide fan-led review of the live music industry, in light of the recent UK-wide survey of the industry. (S6O-04640)

Deepfake abuse has been described as a “new frontier” of violence against women, and the United Kingdom Government plans to make creating sexually explicit deepfake images a criminal offence. The cabinet secretary will be aware that it is the creation of the images that is the issue.

In January, the First Minister said to me that the Government was considering whether there was a gap in the law, and that it would discuss whether it could make a joint effort on the issue with the UK Government. Will the cabinet secretary update me on whether there has been any further thinking about making the creation of such images a criminal offence?

I agree with Liam Kerr’s remarks about the volume of work that the Criminal Justice Committee has undertaken, and I hope that we have done justice to the bill.

The Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Bill does two distinct things. First, it sets out extremely important provisions on domestic homicide and suicide reviews, aiming to identify what lessons can be learned and potentially applied following a death where abuse is known or suspected, in order to help to prevent future abuse and deaths. Scottish Labour whole-heartedly supports the Government in that regard.

Secondly, the bill sets out fundamental and permanent changes to the way in which evidence can be given in court and where the court can hear the initial stages of the court case virtually. The use of virtual attendance has its place, and it is being used in courts. However, its use is key to some victims giving evidence, and it can revolutionise the opportunity for victims to give their best evidence.

We must scrutinise the bill to ensure that the new arrangements can work fairly for everyone, especially given that the provisions that were put in place during Covid will become permanent if the bill is passed into law. We have already established giving evidence by commission in our courts—that has worked well for victims, and the courts are getting used to that.

There are two broad strands to the evidence that the committee received on virtual attendance. First, there was evidence about the principle of allowing virtual attendance and whether the framework for permitting virtual attendance in the bill was appropriate. In that respect, we note that the bill sets out the circumstances in which a court can issue a direction as to whether a physical or virtual attendance should take place. I note the convener’s helpful remarks that drew out where the committee thinks there should be more detail on that.

The bill sets out the framework within which the courts can take such a decision, rather than being prescriptive as to how virtual proceedings should be run. Of course, the provisions have been in place on a temporary basis since 2020. The bill seeks to make these provisions permanent, but I am concerned about the lack of detail on how such decisions can be arrived at. I think that there should not be a blanket decision on types of cases, but that each case should be judged on its merits, at least until we see how the approach can be run efficiently.

The second strand of evidence was about the practicalities of implementing virtual attendance. There are currently many flaws in the system. In fact, some organisations noted that the success of virtual attendance would depend on the availability of reliable, effective video connections. Written submissions from the sheriffs principal stated that they observed

“that virtual hearings are heavily dependent on the adequate resourcing of technology and infrastructure.”

In its written submission, the Faculty of Advocates was supportive of the bill’s provisions on virtual attendance and noted that

“the use of Webex to conduct preliminary hearings in the High Court of Justiciary works extremely well”.

However, it also noted that

“These undoubted and important benefits do come at a cost to the justice system”,

because

“Valuable court time is regularly lost due to delays in establishing remote links and re-establishing failed remote links.”

That is not good enough, and that is why the committee has asked for more certainty on that issue.

There were also concerns about the practical difficulties associated with virtual custody courts. Simon Brown of the Scottish Solicitors Bar Association told the committee that he had participated in a pilot scheme for a virtual custody court in Kilmarnock sheriff court that was “a singular failure”. He noted that those

“Courts took four or five times as long, regularly running until 8 o’clock in the evening,”

and that

“the communication with clients was very poor.”—[Official Report, Criminal Justice Committee, 22 January 2025; c 5.]

According to him, the difficulties included insufficient rooms being available in police stations, limited time with clients and the inability of solicitors to obtain follow-up meetings with clients because of a lack of space.

Paul Smith from the Edinburgh Bar Association pointed out that the lack of facilities in Edinburgh for virtual custodies caused delays, and that for

“clients who have not been through the system before and do not know a solicitor, and for whom this is their first point of contact, virtual custody makes it ... more difficult for the solicitor to form an impression and, in effect, a personal bond with the client.”—[Official Report, Criminal Justice Committee, 22 January 2025; c 6.]

As I noted, there were also concerns about Kilmarnock sheriff court, where it had not gone so well.

Stuart Munro from the Law Society of Scotland commented:

“the trouble is that the virtual systems that we have had so far have tended to be pretty inflexible.”

He noted that

“that is not really something for the bill,”

but that it should

“inform the decisions that are made around the bill.”—[Official Report, Criminal Justice Committee, 22 January 2025; c 12.]

However, as far as I am concerned, in many ways, it is for the bill, because, before we permit the further use of those provisions, those matters must be resolved.

Malcolm Graham from the Scottish Courts and Tribunals Service acknowledged the concerns that arose from the pilots and gave a commitment to the committee that the service is focusing on such feedback to ensure that those provisions can be used effectively.

We also heard from representatives of the users of the justice system that any arrangements for virtual attendance should take account of particular needs. Adam Stachura from Age Scotland highlighted the importance of avoiding digital exclusion in relation to the bill’s proposals, pointing out that the fact that someone can go online does not mean that they

“are very good at using the internet.”—[Official Report, Criminal Justice Committee, 22 January 2025; c 38.]

There is a lot to consider when it comes to ensuring that everyone feels that attending virtually is accessible.

Surprisingly, although the provisions on virtual attendance are welcomed by Police Scotland as streamlining processes and because, it says, they can reduce impact on the front line, it also stated that

“there are real questions about the feasibility of implementation”.—[Official Report, Criminal Justice Committee, 29 January 2025; c 3.]

A running theme can be seen in the feedback from many organisations that are already using virtual attendance in our court system. It is fundamental that we ensure that there is the technology to support that model.

The proposal of a national jurisdiction for custody cases is another aspect of the bill. I want to ensure that the concept of local jurisdiction remains and that we are quite clear where national jurisdiction starts and where it ends.

Finally, on digital productions, it makes sense that the bill suggests that a digital copy could be used and stored instead of being presented to the court, but we must not lose the right of the jury to see, for example, the actual weapon that is used in a murder case. We need to make sure that it does not become a default position that there will be digital productions and that the prosecution or the defence can argue unencumbered if they want the court to see an actual item on display.

There is a lot to unpack in stage 2 of the bill; however, I will support the general principles of the bill.

I whole-heartedly welcome the commitment that the cabinet secretary has made on non-means-tested legal aid for close family members who are involved in deaths in custody FAIs. I called for that when the cabinet secretary made her previous statement on the issue, and I am delighted that the Government will use the powers that are available to it to make that happen as soon as possible, and note that additional powers will be needed at a later stage.

I also welcome the transparency that we are trying to achieve in relation to deaths in custody, and the appointment of chairs of FAIs relating to deaths in custody who can be independent of the Scottish Prison Service.

The removal of bunk beds at Polmont and the progress towards the removal of ligatures are really important for preventing more deaths in custody. Does the cabinet secretary agree that the state has a responsibility to keep prisoners safe while they are serving a sentence? In too many cases, it has not done so. Does she have concerns about Addiewell prison? There have been 14 deaths there since the tragic deaths of Jordan Burns, who took his own life, and Lewis Spence, whose family have expressed concerns about the running of the prison. Families must be given full and unfettered access, as was promised by HMIPS. Will the cabinet secretary look into those matters?

The increased duration of some placements as a result of the increased sentenced and remand populations is welcome. Will the minister outline whether appropriate mental health support will be given to children who might be awaiting proceedings or trial? In relation to young people who reach the age of 19 and who are in the criminal justice system, has any assessment been made of what support they might need to transition to a young offenders institution?

I am delighted to follow Audrey Nicoll, who has done a fantastic job as convener of the Criminal Justice Committee. I endorse all that she said about our joint work on violence against women and girls.

“Scottish public authorities are at risk of costly court battles because of the ‘unregulated introduction of gender self-identification as a basis for policy’”.

That is from The Herald last week.

To be fair, some of those policies have existed in public life for a while—in fact, probably since about 2014—but, for long enough, they went unnoticed and were not publicly discussed.

Jackie Baillie was right to say, as it says in the Labour amendment, that the Government has failed to produce any serious guidance on how public bodies should manage policies to protect women’s rights to single-sex spaces but also to protect trans people.

The UK Supreme Court is considering whether having a gender recognition certificate changes a person’s sex for all purposes under the Equality Act 2010, so we will need to wait and hear that decision. However, it is at least clear that it is not a requirement for public bodies to base their policies on self-identification. Public bodies are required to base their policies on the provision of single-sex private spaces.

Public Health Scotland, the Scottish Prison Service, the NHS and universities have all gone beyond the law on the provision of single-sex facilities. They have failed to meet their legal obligations in relation to women and girls.

In the case of Fife health board, there was no impact assessment on allowing the medic to use a single-sex changing room. That is despite—and this is important—there being a legal duty to conduct such an assessment. You cannot cut corners, even if you agree with the policy.

It is relevant that the 1992 employment regulations are clear that communal sanitary washing or changing facilities will not be sufficient or suitable if they are not provided separately for men and women, as Fergus Ewing said. That was endorsed by Jackie Baillie.

Dr Michael Foran said that

“There is no plausible legal argument that the 1992 Regulations must permit access on a self-ID basis. Indeed, doing so would be a clear breach of the regulations, and guidance that suggests otherwise is incomplete, misleading or false.”

The central questions are, why do public bodies risk being on the wrong side of the law and where do those policies come from? The Government has to take responsibility in that regard. The Equality and Human Rights Commission pointed out that, in the case of Fife health board, no assessment was done.

Police Scotland’s guidance says that all members of staff are entitled to use toilet and changing facilities that are appropriate to their sex, but, again, the current policy ignores the 1992 regulations. I believe that that is under review, but I am unclear on what the current policy is.

We need leadership on the issue. Women’s spaces are about their right to dignity and privacy as much as they are about safety. Women should be central in the design of those policies, because levels of violence against women and girls have never been higher. None of those examples illustrates that women have been central to the design of those policies.

It was the case of Isla Bryson that probably altered the public understanding of the self-identification policy. It was while Isla Bryson was waiting to stand trial and was placed on remand in a women’s prison that the transition began. The Government seemed to realise that the policy was problematic only when it became public, and the Scottish Prison Service made the decision to divert Isla Bryson to Cornton Vale prison rather than Stirling prison or the planned destination at HMP Barlinnie. However, only after public outcry was there redirection of the destination of the prisoner. Having allowed that to happen was a prime example of where the Government’s policy is contradictory.

We agree with the Scottish Government that special policies should be applied to women offenders, because most women in prison are vulnerable. I do not need to tell the minister that 70 per cent of them have experienced domestic abuse and a third of them have had head injuries because of male violence. To force them to share a space in a female prison with someone who is charged with a sex offence is completely unacceptable to most people, and certainly to the people I represent. The judge found in that case that the offender had a high risk of reoffending, which only serves to highlight the risk that was posed to women.

We do not have clarity over whether female prison officers have to search a male-bodied trans woman. This is the point that I want to make—we cannot make unilateral changes to policy without involving those who are expected to enact that policy. I hope that the Government would at least agree with us on that point.

We have policy capture that is widespread in public bodies, and the Government’s smoke-and-mirrors amendment tells us nothing really about whether it takes any responsibility for that. We will work with the Government to protect women and girls and their right to single-sex spaces, and we will work with it to make that policy work for all people, but I say to it, please take some responsibility for the shambles that we have to endure right now.

Our hearts go out to the people of Ukraine for what they have endured, and their hopes for peace and security for their nation and their right to sovereignty.

Does the First Minister agree that we live in complicated and dangerous times, given the rise of the right in Europe and the unpredictability of the US Administration, and that we must therefore strive for peace and stability in Europe and influence, where we can, all nations that are at war? That includes peace and security in the middle east, where Europe could play a leading role for peace.

I know that the cabinet secretary agrees that, as part of the strategy, we need to improve throughcare services. The Wise Group recently advised me that one of the big issues for offenders who leave prison is the fact that they will have lost their place on their general practitioner’s list. That is one of the stumbling blocks in getting them resettled back into the community.

Will the cabinet secretary consider finding a way round that, perhaps by freezing the place of offenders on GP lists, so that it will be much easier for them to see their GP when they leave prison?

Given that the Mental Welfare Commission has visited Skye house on six occasions since 2017, and given that the main issues that were raised in the BBC’s investigation include allegations of physical abuse—including nurses quickly resorting to force such as physical restraint and dragging patients down corridors, leaving them bruised and traumatised—can we have any faith that the enhanced programme of visits will provide the necessary oversight?

Given the magnitude of the allegations, surely it is time to consider regular unannounced visits to such facilities, because Skye house is not the only institution that has had allegations made against it involving abuse of children. Otherwise, we cannot be sure that children are getting the standard of care that they need.