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Rona Mackay will know that, before starting the process for a bill, we have to go through a process of making sure that there is financial cover for its implications. As she has rightly said, those are substantial. A victims commissioner is one; a cost will be associated with specialist courts, too, if those are agreed; and a number of other recommendations will inevitably have costs associated with them. However, we have gone through the process to make sure that we have financial cover.

That does not mean that there is not still a challenge in making sure that we have those finances, but that has been taken into account and there is substantial progress on Lady Dorrian’s recommendations—both those that require legislation, some of which I have mentioned, and those that do not.

I am very mindful and do not deny the logic of that. Also, there is a need for more information on electronic monitoring and other aspects to be provided to the judiciary, because there is not always the level of awareness that there should be. I am not saying that that is the judiciary’s fault, and it is not for me—by any means—to educate the judiciary, but that is a need for more awareness of what is possible. However, you are right that, at the root of it, the judiciary must have confidence that that is a legitimate disposal. It will not be a political direction not to send people to prison, because, of course, that will be for the judiciary, but I do not dispute the logic that the member draws out. That is our direction of travel and what we believe in, and it underpins the ideas behind some of the legislation that we are taking through. The issue is how we continue to do that with the available resources.

I do not think that I have anything to add to the previous responses that the First Minister gave, except to reiterate the point that the cost of that will not fall directly on the justice portfolio but will be borne across the whole of Government. I cannot tell you what the ultimate cost will be, because it depends on factors that are outwith my control and, obviously, pre-dates my time in office. I do not know whether my colleagues who were in post when that became a live issue have anything to add, but I cannot add to what the First Minister said previously.

I have chopped some of the commentary that I was going to make because you have had a long morning and the SSI is not dissimilar to ones that the committee or its predecessors have considered in the past.

The draft International Organisations (Immunities and Privileges) (Scotland) Amendment Order 2022 confers various legal immunities and privileges on the Inter-American Investment Corporation—IIC—and on persons associated with that organisation so far as that is within the devolved competence of the Parliament.

The order is limited to the issue of privileges and immunities. By way of background, I mention that the IIC is the main private sector arm of the Inter-American Development Bank Group—IDB—which lends to Governments and the IIC. The UK has opted to join the IIC, and the conferral of immunities and privileges to the IIC is required to ensure that the UK can fully comply with its obligations under article 7 of the IIC’s founding agreement. Joining the IIC offers the opportunity to be part of an important organisation in the Latin America and Caribbean region, which will support economic growth and leverage further private sector resources for development financing.

To assist the committee, I will say a little about the nature of the privileges and immunities involved. The conferral of legal capacity and privileges and immunities is necessary to ensure that the IIC can function as an international organisation in the UK. The order grants the IIC immunity from suit and legal process, inviolability of archives and premises and exemption from taxation. It also grants personal privileges to the IIC’s officers and employees: immunity from legal process with respect to official acts and exemption from income tax. The income tax exemption does not apply to British citizens.

The privileges and immunities conferred by the draft order are granted primarily on the basis of strict functional need. They are no greater in extent than those that are required to enable the IIC to function effectively.

So that the privileges and immunities are conferred in accordance with the agreement, the UK Government has introduced a statutory instrument through affirmative procedure, with the expectation that it will come into force late this year or early next year. The UK Government also laid its SI in Parliament on 11 October.

I welcome the opportunity to hear members’ views on the order and I commend it to the committee.

To clarify, convener, do you mean between different portfolios?

That relates to the point that Katy Clark made, which is that, if we build new prisons, they can be made more efficient and savings can be made in that way. I acknowledge that, but we cannot get away from the hard fact of the Government’s capital allocations, which have to cover schools, plants, machinery, cars and other vehicles for various services. We have to live within the envelope that we have, and I would say that it is a false envelope, because it was originally based on the Maastricht criteria, if we want to go back to that—the UK wants to cap the total level of borrowing to that extent.

As you rightly say, borrowing to improve public facilities pays for itself in the long term; I agree with that, which is why we are replacing Barlinnie. Members know about the programme of replacements and improvements that we have in place across the prison estate, and we are trying to work our way through that, but we can go only at the pace at which the money allows. To repeat my earlier point, that money is going less and less far because inflation is eating into it. However, I accept that, if we can replace prisons such as Barlinnie, we will make savings in on-going costs.

Thank you for the opportunity to speak briefly about the draft Scottish Biometrics Commissioner Act 2020 (Code of Practice) (Appointed Day) Regulations 2022. The Parliament passed the 2020 act in March of that year. The legislation speaks to some of the key societal issues of our time, touching on data protection, privacy, human rights and ethics as they relate to the police’s use of very personal information. The Scottish Government therefore welcomed the Parliament’s appointment of Dr Brian Plastow as Scotland’s first Biometrics Commissioner in April last year.

Given the rapid increase in the use of biometric data and technologies, it is important that we have an independent commissioner who will raise public awareness about rights, responsibilities and standards, as well as monitor compliance with such standards. It is vital that a clearer understanding of those issues is promoted in our communities, especially for young people and for vulnerable people.

An integral part of the legislation was for the commissioner to prepare a code of practice. That code has been prepared by the commissioner, and it symbolises what I believe is Scotland’s progressive approach to biometrics in a policing context. It is worth mentioning that the code is the first of its kind in the world. It is designed to promote good practice, transparency and accountability by setting out an agreed framework of standards for professional decision making. It is intended to strike the right balance between the needs and responsibilities of policing and the criminal justice system and the fundamental obligation to guarantee the basic human rights, privacy and freedoms of individual members of the public.

The commissioner has developed the draft code in consultation with key interests, including the bodies that will be subject to the code, statutory consultees and other bodies that are represented on the commissioner’s advisory group. Earlier this year, the committee had the opportunity to consider a draft of the code, alongside evidence from the commissioner, and I know that the contents of the draft code were viewed positively by committee members.

The purpose of the instrument is to bring the code into force on the appointed day. As agreed with the commissioner, the day that is proposed is 16 November 2022. From that day, Police Scotland, the Scottish Police Authority and the Police Investigations and Review Commissioner will be required to comply with the code. The commencement of the code will therefore represent a major milestone in the implementation of the 2020 act.

The Scottish Government is happy to work with the commissioner and other partners to ensure that an ethical, proportionate and lawful approach continues to be taken in the collection, use, retention and disposal of biometric data in Scotland for policing and criminal justice purposes.

Yes.

We will have to disagree on that. I have laid out the Crown Office’s current position, but perhaps what I am about to say might help Mr Whittle in relation to the points that he has raised.

In addition to what I have already said about people being notified of or being able to find out the outcome of cases, I can tell members that the Crown Office will be launching a new digital witness gateway service later this year. In fact, it is included in the year 1 delivery plan for our vision for justice. In that first year, delivery will focus on providing access to statements for witnesses and confirming witness availability for trials. However, the Crown Office has made it clear that further services and functionality will be added as part of planned continuous improvements. That will include exploring the communication of case outcomes to victims through the gateway.

There might be situations in which the proactive communication of case outcomes, as has been referred to by Mr Whittle and others, would be considered appropriate over and above the Crown Office’s existing practice. I think that, instead of our requiring the Crown Office to do that as a matter of law, the issue is most appropriately dealt with in a holistic way through the planned initiatives that the Crown Office has already committed to exploring in the very near future.

In practice, the majority of fiscal fines are deemed accepted by the offender. That means that unless the alleged offender refuses the conditional offer by giving notice to the clerk of the court within a period of 28 days from the day that the fiscal fine is issued, they will be deemed to have accepted it. In the event that payment is not made, there is separate enforcement by the court service.

The resource implications of the Crown Office monitoring the acceptance of fiscal fines in that context and proactively identifying relevant complainers in the manner required under amendment 1040 would be considerable, especially before the planned work on the digital witness gateway is carried out. It would put additional pressure on the Crown Office at a time of significant resource pressure across the justice system and when it is trying to deal with a substantial backlog—which I repeat has not gone away, although it is somewhat reduced.

That might be of some comfort to Mr Whittle and others who have raised concerns with regard to the Crown Office seeking to adapt and evolve its interaction with witnesses and victims. For all the reasons that I have mentioned, I invite Russell Findlay not to move amendment 1040.

I have made the point that, if we are to have such a change, it deserves to be considered on its own merits, and the work should be done beforehand. I am not saying that the member has not raised a valid point, but it would have to be considered on its own merits by the committee and by the Government.

I would also be concerned about the unintended consequences of agreeing a new policy in such a sensitive area of criminal procedure. Unfortunately, the backlog of cases that has built up as a result of the pandemic means that cases are taking longer to reach court. I recognise that that impacts in particular on complainers, witnesses and accused people who are awaiting trial, especially in sexual offence cases, and that these amendments are intended to address that problem. I would note, though, that these issues, and the effects of the pandemic, are not unique to the Scottish judicial system.

However, I am concerned that amendments 1001 and 1002 could have consequences that I think Mr Whittle would not intend. The exceptional circumstances test is, in fact, a much higher bar than the existing cause shown test. It has to be assumed that such a new test would create a presumption that applications to extend the statutory time limits, whether made by the prosecution or by the defence, would ordinarily be refused, and that they would be granted only in exceptional circumstances. When a judge refuses an application to extend a statutory time limit, there are two possible outcomes: the case proceeds to trial as it stands, assuming that a trial date has been fixed, or it falls.