Chamber and committees

Philip Lamont’s contribution on that will be useful. That is an area that it is more than tricky for the Government to get involved in. I think that you are asking about how there would be such interaction, short of there being legislative measures. It is very tricky for the Government to get involved in that, given the independent nature of the Crown Office.

As Jamie Greene said, the committee has heard evidence from some people who have said that legislation is a legitimate way to deal with the matter. That is the role of legislators. However, it is not our role to get involved in the influencing, if not the directing, of the independent service.

It is not my position that the opposing of bail is overused. However, I think that the committee received evidence from members of the judiciary or the legal community who felt that they are currently constrained when it comes to refusing bail.

I do not know whether Philip Lamont wants to add to what I have said.

That is an interesting part of the bill, because, as you hinted, what you will get from recording is a seam of really rich information that others can use, which is the court’s statement on why bail was not granted. That will lead, over time, to greater refinement of those decisions. Some of the academic witnesses from whom you heard also said that they think that it will be a rich source of information in an area where such information is currently very limited. That, perhaps, is the main benefit. I know that it is another process for the court to go through, but it will be extremely productive. I wonder whether—I will try to get the right official—Philip Lamont wants to comment on that. Yes, he has put his hand up; I have the right person.

The quote that I read out at the start from Professor McNeill is useful in this philosophical discussion. He talked about the idea of remanding somebody reducing or eliminating the risk—I forget the exact quote. I think, and he said, that there is an increased risk sometimes. If you imprison somebody, especially in situations where they are then found to be innocent of the crime with which they have been charged, you increase risk. If somebody is put into the prison system—I know that we would all agree that, sometimes, currently, because of the pandemic, that occurs for longer periods than we would otherwise like to see; sometimes, that might be for months—you are increasing risk through that process. It is not recidivism in that case, because they have not committed an offence.

Bear in mind that, these days, since the presumption against short sentences was passed, a far greater proportion of the prison population in Scotland comprises violent and sexual offenders. If people, including those who are then found to be innocent, are being incarcerated with those offenders, there is bound to be a risk attached to that. That is what Professor McNeill was saying. That is one area, at least, where the increased risk comes in.

The length of time on remand, as I have just conceded, has been exacerbated by the pandemic. That is true of every jurisdiction. The concerns about the high levels of remand in Scotland, however, predate the pandemic. The 2018 report of this committee’s predecessor said exactly that, but it has been said many times.

Compared with England and Wales, we have a higher remand population, although theirs is growing fast. There is now a higher prison population in England than we have in Scotland, for the first time in many years. They have seen a huge increase, and their remand population is at a 50-year high, although that is still not as high as the remand population in Scotland.

We are sending more people to remand and we are trying to deal with that. However, we are also dealing with the other point that you rightly make about how long people are spending on remand. I mentioned the reduction in the backlog, although I concede that that is mainly on the summary side rather than on the solemn side. Over the past year, that has been reduced by more than 13,000—it is down from around 44,000 to around 30,000—which is a fantastic achievement. We are tackling the backlog, but we are not blind to the fact that—I have just put this argument to you—being remanded can have a negative effect on risk and being remanded for longer increases that risk. I concede that point and we are trying to deal with it.

You correctly identify the two sides to the issue. On the one hand, we need to get effective bail supervision services in place. We had an underlying concern that we did not have that level of consistency across the country, so we have put in place measures and resources over the past year to make sure that we do. The other side of it—this is the critical side for some of the intentions behind the bill—is to make sure that the courts have confidence in that supervision. I am not sure that I saw that in the evidence that the committee has heard, but I am happy to acknowledge the fact that there is variability—at least, there has been hitherto—in the confidence that different sheriffs have, depending on where they are in the country, about how effective bail supervision is. If they are confident that bail supervision is there, that has to lead to a more proactive approach from the courts where they say, “We know that this is a real and safe alternative, so it is the route we will go down”.

Yes. We are obliged to, in any event, in terms of the financial memorandum that will accompany the bill. In addition to what I have just mentioned, we have provided £53 million, I think, in the current year to try to reduce backlog and make other provisions that will impact in that area to try to make it a more effective service to the courts, should they wish to use it. The fact is that the current provision—just to state the obvious and make the point that you have made—does not require the level of activity or presence from justice social work that will be required by the bill. Necessarily, justice social work will have to be present to a much greater extent. It will have to step up to do those things and make reports as quickly as it is able to do.

On the one hand, justice social work will have to step up, and, on the other, the Government will have to find the resources to make sure that it is able to do that. That is recognised and I mentioned the figures that we put in. I mentioned the fact that the bill will have to be accompanied by the financial memorandum, so we understand that challenge.

Yes. We are obviously interested to hear the outcome of the Lord Advocate’s engagement with the Northern Ireland Office. As Helen Nisbet rightly says, it is not for us to take a decision on publication; that is entirely for the Crown Office and the Lord Advocate. It might, however, help to find a way forward on the issue.

It is regrettable that we were informed so late in the day. That has not allowed us to carry out the consultation that we would have liked to carry out. It is becoming a more regular occurrence. We were advised of the bill on the day that it was introduced at Westminster, although some paragraphs had been shared with us beforehand. We will, of course, look at any changes that come and will discuss with the Lord Advocate how she feels that the engagement and the suggestions that she has made have been received by the Northern Ireland Office.

We are, of course, not against the idea of reconciliation—or, possibly, amnesties—as we have already seen under the Belfast/Good Friday agreement. There is no in-principle objection to that; it is just the way in which the proposal has been constructed, with the insertion of the commission into a process that, we believe, undermines the two principles that I have mentioned: the independence of the Lord Advocate and the human rights basis of this Parliament and Government. Those are the two principles that I am highlighting. It must be at least theoretically possible to contrive a commission that can do such things without undermining those principles; this is not, in principle, about the commission itself.

We are trying to consider what would happen if the bill were passed. The effect of that would certainly be to undermine the Lord Advocate’s role, because there would be cases that she could no longer prosecute that she might otherwise want to prosecute. In fact, even if the commission decided not to prosecute, if it decided not to refer a case to the Lord Advocate, there would be nothing that she could do to prosecute a case that she might want to prosecute. That is one of the effects, and it is that effect that we are talking about.

I mentioned the specific articles that some of the human rights organisations have expressed concern about, and we have the same concerns. You know the basis on which the Parliament was founded in relation to human rights. However, it is also true to say, I think, that every Opposition party at Westminster and all the parties in Northern Ireland are similarly concerned about aspects of the bill.

I am trying to point out the practical effects for the Scottish Government and why we would object to them. You asked about the principles of the commission. If the principles of the commission allow for that intervention in the legal system in Scotland in a way that undermines the Lord Advocate’s position, it is a principled objection. It is certainly a principled objection to say that we do not think that the commission is compliant or to say that we have sufficient concerns about compliance with the ECHR. It is a principled objection to the basis on which the commission is founded, rather than to the idea of a commission itself.

That is a difficult question to answer. Certainly, I back the general idea that you want to get as much truth, openness and justice as possible through any such process. However, you cannot get justice if you undermine, on the one hand, the role of the Lord Advocate and, on the other hand, the accepted basis of human rights. In general terms, why would you not support trying to achieve greater truth, transparency and, hopefully, reconciliation? Justice must be at the heart of it, however, and we do not think that justice is served by the bill. All that we can go on, rather than sentiment or hypothesis, is what is presented to us. That is why we are opposing it.