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I, too, thank Katy Clark for lodging amendment 37. My understanding is that she will not be moving it, but I will let her explain that when the time comes. The committee has certainly grappled with the issue of data.

I want to speak to amendment 8, which was a very welcome surprise when it appeared on the daily list of amendments. It is not often that the Government comes forward with comprehensive reporting requirements in that fashion. [Interruption.] Well, you are doing so now, which is a welcome change of tack.

My understanding is that some of the data is already collected, although it is quite hard to get. Indeed, we have been trying to get information for quite some time. It is very tough to tease out the data, which often comes out through various reports or through the publication of statistics in response to a freedom of information request or parliamentary questions.

I could make a controversial comment and say that, if we had done what is set out in amendment 8 before introducing the bill, we might have a better picture of the effect that the legislation might have or whether it is even needed at all. Amendment 8 would give us some of the data that we have been crying out for throughout the stage 1 process. That includes the information provided for in subsection 2(d):

“an analysis of the length of time that individuals spent within the remand population”.

That might explain away some but surely not all the anomalies as to why our remand population is so high. We really would have loved to have had such data. I mean no disrespect to SPICe in saying that, because there are limitations to the data that is collected.

The point of interest to me is on bail orders and the relevant convictions off the back of that. Clearly, there is a cohort of people who go on to do one of two things after they have been given bail: some breach the bail conditions, whether those are simple or enhanced conditions, and others commit entirely unrelated offences. With the limited data that I could unearth, I found that—I think that I have raised this in committee before—in 2020-21, 15,724 crimes were committed by somebody on bail. Those are the Scottish Government’s own statistics. That is one in four crimes that were recorded in that year, which is a fairly substantial number. That might explain some of the uneasiness that some members had about the direction of travel of the proposals. If the effect of the legislation is to—

I find amendment 1 very helpful. It is not a huge surprise that the Government has pushed back on it. In my experience, from working on many bills, any reporting requirements that members propose to add are generally rejected by the Government, although such requirements sometimes appear. I hope that the member will move amendment 1 or at least bring it back at stage 3. It would not place an onerous task on the Government. The timescale of one year after the legislation is introduced is on the tight side, but that could easily be amended at stage 3 to two or three years.

I do not buy the rebuttal that post-legislative scrutiny is the answer to the issue, because that generally takes a number of years and it is not always done well, as committees are extremely busy.

Amendment 1 would require the Government to come back to Parliament with a report for the reason that Katy Clark rightly mentioned, which is the very substantial worry that the financial memorandum has massively understated the costs to social work. As a committee, we have heard numerous pieces of evidence about social work being under pressure. The amendment would be a welcome addition to the bill, and I hope that the member will press it.

Thank you. I forgot to mention the lack of data that is available to us throughout the process, and you have just prompted my memory. That is a real issue. We should be making legislation that is driven by good data, by which I mean relevant qualitative and quantitative data. The biggest problem that we had was understanding what the prison population looks like. Are people there for too long? What types of crime profiles are people in prison for?

If a pattern emerged—for example, that people who had committed quite low-level crimes had been remanded—there would be valid questions to ask of the judiciary about their decision making using the current bail test. However, we did not have such evidence presented to us, and there certainly were no patterns emerging, other than that we know that there are delays to eventual trials. There is a lack of positive information to show that the current rules do not work and are leading to a high remand population, which is why we are so nervous about the change to the bail test. We are not opposing it for the sake of opposing it.

I have four amendments in the group and will try to keep my comments to those, as there are many amendments in the group and we have heard a lot of explanation about others.

Amendments 56, 58, 61 and 62, and many of my amendments to the bill, relate to a particular group of people—victims of crime. My amendments in the group have an overarching goal. Although I understand the cabinet secretary’s approach, I want to ensure that the bill reflects on and considers both victims and offenders as much as is possible. That fits very nicely with the excellent debate that we had yesterday: the Parliament is rightly seeking to constructively refocus our justice system on the needs and rights of victims, and there is broad consensus on that.

The amendments get to the very heart of what part 1 of the bill is about, which is the issue of changing the test for bail. The proposed legislation alters the bail test that is set out in the Criminal Procedure (Scotland) Act 1995. Under that existing legislation, bail can be refused for a number of very valid reasons, including, for example if there is a

“substantial risk that the person might if granted bail ... abscond; or ... fail to appear at a diet of the court”.

We have heard a little about some circumstances in which judges and sheriffs have used that provision.

Someone can also be remanded if there is a substantial risk that a further crime might be committed while that person is on bail—we all know the statistics about crimes committed while people are on bail—or if there might be a substantial risk that the person might interfere with witnesses or obstruct the course of justice. Those reasons are all routinely used to refuse bail, and I think that those are sensible measures that the judiciary has made good use of since the provisions came into force, in 1996.

The Government has challenged us to think about the assumption that we have a large remand population, which is an issue that the committee has looked at in great detail. Is there a conclusion that remand is currently being overused by sheriffs and judges or that it is being wrongly applied when the existing tests are applied? It is not clear from any of the notes accompanying the bill what the Government believes.

Our stage 1 proceedings went into a great deal of detail with a large number of witnesses, and we took much oral and written evidence. There is no concrete evidence of the overuse of remand. The committee went to watch hearings taking place and there was no evidence of that. I understand that remand is generally perceived to be a last resort in summary cases, and I very much got that impression from our private discussions with judges. As those discussions were private, I cannot refer to them, but it was clear that remand was very much a last resort. It was used only once in the 30 or so cases that we watched. Those were summary cases, so that is what we would have expected.

The use of remand will naturally be more common in solemn cases, as it will be in the High Court. That is because of the nature of the cases that go through those proceedings, which tend to involve crimes such as serious violent assault, murder or attempted murder, serious organised crime or serious sexual assault. Naturally, remand figures in those cases are much higher. However, the Government has not made the case that judges are overremanding people.

If the intent through the bill is to reduce the remand population, a very clear way in which the Government could do that would be to get through the backlog of cases. This Parliament voted on legislation to increase the time limits for which someone can be held on remand. We were all uncomfortable in doing so, but we understood the reasons for that. The measure was used during the Covid pandemic, and it was extended. Indeed, some of us felt nervous that it would become a permanent feature of our justice system.

Many people are held on remand who perhaps should not be, but is that a result of their wrongly being held on remand in the first place or the fact that they have been languishing in prison on remand while they wait for their case to come to court? I think that it is the latter. Indeed, we have seen evidence of that, including when we visited HMP Edinburgh—or Saughton prison—early in our inquiry, where we met a number of men, most of whom were young, who had been held on remand for far too long. We all want to address that issue, and I am sure that we will all come together to do that. However, the issue is that the bill will change the bail test.

My amendment 56 might be the shortest of my amendments, but it is probably the most important one that I will speak to today. It would change the word “and” to the word “or”, which seems minor. However, the effect of that would be to ensure that the two-step test, which is the Government’s most controversial proposal in the bill, is removed. In effect, the amendment would remove any conditions that having a two-step test would impose. Some scenarios have already been mentioned, such as further offences that might be committed while someone is on bail or where there is a genuine risk that an offender will abscond or miss future diets—those are primary considerations. Currently, sheriffs and judges—rightly—routinely use those crucial factors.

I want to pay credit to Victim Support Scotland, which has been mentioned a couple of times already. Some of the other amendments that I have lodged in this group have been as a result of my working with it, and they should not be taken lightly.

Victim Support Scotland told us:

“It will be a concern to the public in general and victims of crime specifically that the provisions relating to bail narrows the court’s discretion to refuse bail. That is, no doubt, with the intention of reducing the prison population.”

The Scottish Police Federation said in its written evidence that the proposals would be

“as unwelcomed by communities plagued by repeat offenders as they will be to Police Officers who work tirelessly to keep these communities safe.”

Amendment 56 would broaden the scenarios in which an individual can be refused bail. I do not think that we should be forcing our courts into a situation in which they believe that an offender could be a risk but, due to a technical interpretation of the legislation, would have to release them anyway.

Lord Carloway is absolutely right: the judiciary knows best in that regard. That is my view, too. Indeed, over a number of months, if not years, I have heard from the Government that it relies heavily on the independence of the judiciary and that ministers should not meddle or interfere with it. That is generally the response that I have received to most questions that I have put to justice secretaries historically. If the Government truly believes that the judiciary is independent, let it remain so.

Amendment 58 would give the courts further discretion on the ability to remand someone into custody if they think that there is a substantial factor in justifying that—and they would have to justify that. The amendment replicates the wording of an existing provision in the Criminal Procedure (Scotland) Act 1995, which judges and sheriffs have already used to good effect. It adds extra flexibility. The amendment says:

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<( ) due to any other substantial factor which appears to the court to justify keeping the person in custody.>”

That is reasonable and proportionate, and it certainly makes sense. In that regard, I also support amendments 2 and 33 on the basis of Katy Clark’s explanation.

The bill must also give—this is where there is room for improvement, which I hope that the cabinet secretary is open to—judges and sheriffs the discretion to use, if the new test is applied, the absolute power to take into account all relevant factors.

I was slightly nervous about the language that the cabinet secretary used when speaking to group 1. She was more explicit than her predecessors in saying that the bail test is “more focused” and therefore might

“reduce the use of remand.”

I am not entirely sure what “more focused” means in that context—does it mean more restrictive, perhaps? The answer to that is yes. What does the cabinet secretary mean by “more focused,” and does she believe that that will tie the hands of judges? If not, why not?

I will discuss amendments 61 and 62 separately. They were drafted in conjunction with Victim Support Scotland. I am pleased and proud to work with it, because it represents the voice of victims—not in all cases, but in many cases. Amendment 61 aims to ensure that, when a court is considering a matter of public safety, it

“must request the prosecutor or officer of the local authority to provide the information”

that is pertinent to the consideration of public safety. The amendment does not use the word “and”; it uses the word “or”.

In my experience—and the cabinet secretary rightly acknowledged this during an earlier group of amendments—the Crown agent who is there on the day is often the best source of information. However, I also appreciate that they are extremely busy. There is often only one advocate in the court, who has a large number of cases to get through, and, when they are asked to provide information in real time, they struggle due to the sheer volume of information that is made available. That is the case on a Monday morning, in particular, if someone has been remanded into custody over the weekend. There is a lot of pressure to get a huge amount of information together for a Monday morning court hearing, and it is possible that not all the information will be there on the day.

The Crown has to make a judgment about whether to oppose bail, and it is on that point that further intervention could better take place. There could be improvements at that level on whether the Crown simply does not oppose bail. Normally, in those circumstances, it would be very bizarre for the judge to remand someone if the Crown has not opposed bail.

I am keen to explore that further. Is it being suggested that the technical problem with Liam McArthur’s amendments means that information from the complainer that relates to decision making would be made public or spoken out loud in the remand court? Is there no technical solution to that? Clearly, the judge could have all the relevant information, but they would not need to share that with the gallery or, indeed, anyone else who was in the room.

That information is surely quite important to the decision-making process. The ability to understand whether there is a public safety issue is very much dependent on direct information from a victim or someone representing them, which, in this case, would be a relevant person.

Will the member take an intervention?

Yes, thank you.

When I saw amendment 67 on the daily list of amendments, I thought that it was very welcome. [Interruption.] Would you mind if I close the window before I carry on, convener? There is a very noisy, angry crowd outside—I am sure that it is nothing to do with us. I am not sure which flag they are waving today, but it is quite a protest.

To simply remove section 5, as Collette Stevenson’s amendment 67 would do, is a blunt approach, but I think that that is the best approach. I am not sure what tinkering could be done to it. I fundamentally disagree with the concept in section 5 that time spent being electronically monitored should be considered as part of a person’s sentence.

I do not have a problem with the concept of someone spending time being electronically monitored while they are on bail. However, section 5 relates to a court passing a sentence of imprisonment or detention and the time that is given for a sentence, and it sets out that any qualifying time in which someone is electronically monitored will form part of their sentence. We included that issue in yesterday’s debate in the chamber, pre-empting our discussion today, but it was an important point to make, because electronic monitoring is a condition of bail. Effectively, it could be used by courts as an incentive to say to someone whom they would have previously placed in custody that they will grant them bail with enhanced monitoring. That is the point of the measure.

There are different monitoring tools and different ways to monitor people. Some of those are incredibly useful, including monitoring people’s geographical location and movement, and monitoring abstinence from substances such as alcohol and drugs. We can have a positive and constructive conversation about those. However, the fundamental issue with section 5 is that, if a person spends time being monitored, that will be considered as part of their sentence. That is why victims organisations have been vocal in their opposition to it.

Collette Stevenson’s approach to take out section 5 is the right one. Section 5 does not have a place in the bill and the Government will struggle to justify it. No amount of tinkering could fix the problem. The only tinkering that could be done with section 5 is simply to say that, notwithstanding all the above, it is entirely up to the judge. If that is the case, what is the point of having it?

That is only on the assumption that the provision states that the court “must” remand. Section 2 of the bill says that

“The court may determine that there is good reason for refusing bail only if it considers that”

one of the grounds in section 23C(1) applies and that the new bail test that the Government has introduced via the bill is met. The interpretation is interesting—my understanding of the changing of “and” to “or” is that we would either revert to the status quo under the 1995 act or we would simply afford the court the flexibility to make an and/or decision. If replacing “and” with “or” is the wrong way to go about that, the Government could suggest a better way. The provision states:

“The court may determine ... if it considers”,

so there is no “must” about it. There is no absolute that weakens the current remand test or expands it in any way.

I appreciate your taking all these interventions—it is a good debate.

What is the Government’s fundamental problem with the court having additional options? Under its wording, amendment 58 proposes that the court may consider refusing bail

“due to any other substantial factor which appears to the court to justify keeping the person in custody.”

It is the “justify” bit that is important, because, when a judge or sheriff decides to remand someone, they must give a valid and justified reason for doing so. Equally, the person in question has the right to appeal the decision. Why does the Government believe that courts should not have that power? The case has not been entirely made.

The proposed new section appears in the bill as drafted, but that does not mean that it has to stay in it. We have a new cabinet secretary, and we have a new focus on victims. The cabinet secretary has an opportunity to do the right thing on section 5. I feel uncomfortable with her response. I appreciate that she has inherited the policy, but that does not mean that we have to live with it.

Who was consulted on the formulation? During our stage 1 deliberations, all that we heard on this aspect was evidence from two academics who said that they had heard an idea about it somewhere else. We certainly took no evidence on it, and members of the judiciary did not indicate that they had been consulted. Where on earth did the formula whereby two days on electronic monitoring means one day in prison come from?