Scottish Parliament, 25 June 2019

230 contributions from 34 members. The official report.

Time for Reflection

Kenneth Macintosh (Labour, West Scotland)

Good afternoon. Our first item of business this afternoon is time for reflection, for which our leader is the Reverend Lorna Souter, minister for Cockpen and Carrington parish church with Lasswade and Rosewell parish church.

The Rev Lorna Souter (Cockpen and Carrington Parish Church, and Lasswade and Rosewell Parish Church)

Presiding Officer and members of the Scottish Parliament, thank you for the opportunity to address you this afternoon.

We seem to have been living through frustratingly uncertain times for a long time now. Always in life, there is a question of how we cope with uncertainty. In his book “Canoeing the Mountains”, the America writer Tod Bolsinger uses the example of the American explorers Meriwether Lewis and William Clark, who in 1804 embarked on their search for the north-west passage.

After spending 15 months paddling and carrying canoes up the Mississippi-Missouri river to its source, Lewis and Clark were full of expectation that they were about to realise the dream of centuries of pioneers. They believed that all they and their party had to do was to walk up the little hill in front of them and look down a gentle slope—which would take them a half day to cross with their canoes on their backs—and they would see the Columbia river, which would swiftly whisk them to the Pacific Ocean and the climax of their quest.

However

, in the next moments, what they actually found was something entirely different. They found the Rocky mountains, stretching out for miles and miles as far as the eye could see, one set of peaks upon another.

What was next for them? They were going to have to go off the map into uncharted territory. All was uncertain. They might have felt like giving up and turning back, but they did not. Instead, with courage, resilience, openness and versatility, they kept going. The true adventure had just begun.

In the church, too, we face uncertain times at present, having to head into uncharted territory as we explore new ways of being and doing church today. It can seem daunting and, in the Lord’s leading, we need courage and versatility to press on.

In our wider uncertain times, I dare say that there are moments when you want to put head in hands and wonder, “What next?” However, I pray you will each know the courage, resilience, openness and versatility that you, too, will need to pursue paths of potential ahead. Before then, may you each, importantly, be able to make space for true rest in the recess, to recharge your batteries and be refreshed for your task ahead. Thank you.

Income Tax

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

1. To ask the Scottish Government what its forecast is for income tax growth in the coming years. (S5T-01728)

Derek Mackay (Scottish National Party, Renfrewshire North and West)

The Scottish Government does not produce its own income tax forecasts. The independent Scottish Fiscal Commission publishes its official forecasts of Scottish income tax receipts twice per year, and has done so since December 2017. The SFC forecasts annual income tax receipts of £11.5 billion in 2018-19, growing to £14.6 billion in 2024-25, which is an increase of £3.1 billion.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

Scotland collects its own income tax, which means that it is more dependent on its own economic performance. The Institute for Public Policy Research suggests that if the tax projections are correct, the Scottish economy could lose £1.8 billion over the next five years through income tax growth that is weaker than in the rest of the United Kingdom.

Despite £360 million of income tax rises in 2019-20, increased income tax growth in the rest of the UK means that the Scottish Government’s budget will be £5 million worse off than it would have been under the previous system.

Without hiding behind a Brexit bush, can the cabinet secretary tell the chamber how the Scottish Government will fill the tank of an economy that is running on empty?

Derek Mackay (Scottish National Party, Renfrewshire North and West)

The member raises a number of issues. Scotland’s economy is performing well: it has record low unemployment, record high employment and a strong performance on productivity, exports and a number of other economic indicators.

There might be cyclical or distributional issues when it comes to income tax growth. I have explored thoroughly with the Finance and Constitution Committee the fact that there might well be deepening inequality in the rest of the UK, where more higher-rate taxpayers’ increases are going further, and that might well have a negative net impact on Scotland’s income tax rates because of the arrangements in the fiscal framework. However, our economy is growing strongly. If we want to support that on-going economic growth, we need to avert Brexit, because it would have a damaging impact on the whole of the UK, not just Scotland. We want to have a sustainable growth agenda.

I point out that the benefit of having a devolved income tax system is that we can make decisions for ourselves. For example, we have decided to have a more progressive income tax system, in which 55 per cent of Scottish taxpayers pay less than they would have done if they lived south of the border. Those 55 per cent of taxpayers are at the lower end of the income distribution rather than the top end, whereas it is those at the top end to whom the Conservatives seem to want to pander.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

The Scottish Fiscal Commission and the Fraser of Allander institute have noted that Scotland’s net tax position is worse because of the downward revisions to Scottish earnings growth, despite the fact that Scottish taxpayers are paying £500 million more in income tax compared with their counterparts in the rest of the UK. Does that mean that the cabinet secretary will have no choice but to increase taxes further, leading to hard-working Scots having less money in their pockets, and to less growth and less revenue, which will ultimately lead Scotland further into a black hole?

Derek Mackay (Scottish National Party, Renfrewshire North and West)

No, it does not mean that at all. The reality of the income tax reconciliation is that it is down to forecast error at the hands of the Scottish Fiscal Commission and the Office for Budget Responsibility. That issue will be addressed. At the moment, we are talking about forecasts of forecasts. Once we have outturn data, we will know exactly what the position is. At that point, we will be able to more deeply understand the issue—which might be distributional—of the potential growth in higher-rate taxpayers in the rest of the UK compared with Scotland.

The factual position is that income tax is going up year on year. We will collect more in income tax, but we face issues such as the block grant adjustment and UK rates potentially going up more. Those are among the issues that have been addressed by the SFC.

The truth is that the Scottish economy is doing well. The economic indicators are strong. Income tax will be going up. We want to further stimulate growth, but the SFC and the Fraser of Allander institute say that our economic success story is threatened by Brexit, which can still be averted.

Rachael Hamilton’s question was partly about the position of taxpayers. Scotland has a more progressive tax system. The structure is fairer, as are the decisions that we have taken. If, for example, there is a Boris Johnson premiership, it is perfectly clear that the funding will go towards tax cuts for the richest 10 per cent in society. That is unfair and will continue austerity. The Scottish Government will not be making such a choice, because it is not the choice of the Scottish people.

Kenneth Macintosh (Labour, West Scotland)

Three members wish to ask a supplementary, so I hope that they will all be quite succinct.

James Kelly (Labour, Glasgow)

One of the points that the IPPR makes is that promoting wage growth would boost tax revenue—an increase of 1 per cent in wages would add £750 million to tax revenues.

That is particularly relevant when there are 470,000 people in Scotland not being paid the living wage. Is it not now time for the Scottish Government to change procurement legislation to make it mandatory for anybody who works under a public contract to be paid at least the living wage?

Derek Mackay (Scottish National Party, Renfrewshire North and West)

We are working within the law to ensure that as many people as possible are paid the living wage. I get advice on what is legal and what is not, and we are doing everything that we can within the law to support the living wage. It is good news that more people are paid the living wage in Scotland than in any other part of the United Kingdom, but of course everyone should be paid at least that.

We have a focus on the living wage and the fair work agenda. Tackling inequality is really important—it is one of the issues that drives the reports that we are hearing about. Inequality is getting deeper in Scotland than elsewhere in the United Kingdom, which is having an impact. Those at the top are being paid disproportionately more, while we are trying to bring those at the bottom of the structure up.

I absolutely agree with James Kelly about the minimum level. It would be better if we had devolution, control and power over employment law and setting the minimum wage in Scotland. However, in the absence of that authority and those powers, we will do everything that we can as a Government to encourage payment of the living wage by those from whom we procure services, as well as more widely.

Tom Arthur (Scottish National Party, Renfrewshire South)

Central to the operation of the fiscal framework is the relative economic performance of Scotland and the rest of the UK. Productivity is a key driver of wage growth and income tax receipts. Will the cabinet secretary outline how Scottish productivity growth compares with that of the rest of the UK?

Derek Mackay (Scottish National Party, Renfrewshire North and West)

The latest statistics show that, in 2018, Scotland’s productivity grew by 3.8 per cent, compared with 0.5 per cent in the UK as a whole. Further, since 2007, productivity in Scotland has grown by 10.8 per cent compared with 2.7 per cent in the UK as a whole.

Patrick Harvie (Green, Glasgow)

All Governments face some degree of uncertainty from fiscal forecasting, because there will always be a risk of forecasting errors. The Scottish position now is that we have forecasts from the Scottish Fiscal Commission and the Office for Budget Responsibility; we have two separate sets of fiscal forecasts by separate bodies with separate methodologies. Is it not increasingly clear that the absurdly complex fiscal framework has left Scotland with compounded economic uncertainty in exchange for half measures on fiscal autonomy?

Derek Mackay (Scottish National Party, Renfrewshire North and West)

That is a good description of the complexity of the system. There is an easy remedy for the complexity of devolution: Scottish independence.

Specialist Mental Health Support (Children and Young People)

Mary Fee (Labour, West Scotland)

2. To ask the Scottish Government what its response is to reports that children and young people who attempt to take their own lives have to wait weeks for specialist mental health support. (S5T-01733)

Clare Haughey (Scottish National Party, Rutherglen)

The Scottish Government is committed to ensuring that children and young people get access to the mental health support that they need, and recognises the distress that is caused to children, young people and their families by any delay in accessing mental health support.

Children and young people are a particular focus in the suicide prevention action plan that was published in August 2018. I have established a national suicide prevention leadership group, which is chaired by the former deputy chief constable, Rose Fitzpatrick. The membership of the group is broad, and includes representation from the health and social care, justice and third sectors; local authorities and the Convention of Scottish Local Authorities; and clinical professionals, young people—importantly—and people whose lives have been affected by suicide. The Scottish Government is working with the NSPLG to ensure that all the actions of the suicide prevention action plan consider the needs of children and young people.

Mary Fee (Labour, West Scotland)

In June 2018, the Government tried to sneak out an audit report on rejected referrals to child and adolescent mental health services, which found a belief among patients that unless the situation was serious enough, the individual would not be seen. Nine months ago, Audit Scotland published a report on CAMHS, which found that

young people were not getting appropriate care until they reached crisis point. This weekend, it was reported that a teenager who had already tried to take her own life had to wait a further four weeks to be seen. Given the urgency and seriousness of the situation, does that sound like adequate progress to the minister?

Clare Haughey (Scottish National Party, Rutherglen)

Long waits for CAMHS treatment and support are unacceptable, which is why we set out in the 2018 programme for government a £250 million package of measures to support positive mental health and prevent mental ill health.

We also formed the children and young people’s mental health task force, and its delivery plan was published at the end of December. Next month, it will publish its recommendations on how mental health services can be improved for children and young people and their families.

Mary Fee (Labour, West Scotland)

It does not sound to me—or, I am sure, to many people who are listening—as though much progress is being made. One in four children and young people is still having to wait more than four months to be seen for their first appointment. Last month, during the statement on the NHS Tayside interim report, the minister refuted a suggestion from Miles Briggs that the issue of services not taking suicidal patients seriously was “widespread” across the country. Given the reports over the weekend, does the minister stand by that statement and is she, after a full year in the job, really so unaware of the issues on the ground?

Clare Haughey (Scottish National Party, Rutherglen)

At the end of March, 26,740 children and young people were under the care of CAMHS services across Scotland. That is a testament to the amount of work that the CAMHS staff do in supporting children and young people at a time when they are feeling particularly vulnerable. However, there is much more for us to do. That is why I am looking forward to the recommendations from the children and young people’s mental health task force and to working with the Convention of Scottish Local Authorities to set out how we will address those recommendations. I am sure that Mary Fee will be interested to hear the response to that when we make a statement in September about the progress of the mental health strategy.

Annie Wells (Conservative, Glasgow)

Figures released in May show that the Scottish Government is falling woefully short of getting anywhere near its target number of mental health workers. Despite a promise in the mental health strategy to recruit 800 additional workers by 2021-22, as of April this year, only 186 whole-time equivalents had been recruited. Can the minister guarantee today that the Government will meet that target?

Clare Haughey (Scottish National Party, Rutherglen)

We are reporting quarterly on the additional workers under action 15 of the mental health strategy. The most recent figures were published in May and further figures will be published in August. We are certainly keeping close track of those. We are working hard with our colleagues in health boards and integration joint boards to ensure that we get the workers in those key target areas as quickly and appropriately as we can.

Dental Treatment (Waiting Times)

Alex Cole-Hamilton (Liberal Democrat, Edinburgh Western)

3. To ask the Scottish Government how it will reduce the reported long waits for in-patient and day-case dental treatment. (S5T-01738)

Joe FitzPatrick (Scottish National Party, Dundee City West)

Our £850 million waiting times improvement plan will substantially and sustainably improve waiting times, including those for in-patient and day-case dental treatment.

Alex Cole-Hamilton (Liberal Democrat, Edinburgh Western)

Across Scotland, dental consultant vacancies are going unfilled and patients are left waiting. The British Dental Association described the figures acquired by the Scottish Parliament information centre and Scottish Liberal Democrats as “eye-watering” and it said that patients can effectively expect to wait much longer. The BDA said that those long waits are being driven by a failure on prevention and a failure to invest in the workforce. The most recent Information Services Division figures show

a “noticeable drop” in national health service dental staff, down 14.7 per cent in the past five years alone. Can the minister explain why?

Joe FitzPatrick (Scottish National Party, Dundee City West)

Two points were made about the BDA. One was on workforce, which I will come to shortly, and the other was on prevention. Prevention is an area where we are having substantial success across Scotland. The childsmile programme is making a real difference. It helps to make sure that children know how to brush their teeth properly and provides fluoride varnish applications. We will be announcing the next stage of that under the community challenge fund of the oral health improvement plan, and we will be announcing which projects will be taken forward that are aimed at reducing further the oral health inequalities among children.

On the other area, a challenge that we no longer have is people being unable to access an NHS dentist—very few people cannot access one. When this Government took over in 2007, huge numbers of people were unable to access an NHS dentist, and we have managed to turn that around. Sometimes, it is important to acknowledge progress where it has been made, so we should thank our dental colleagues for rising to the challenge and making sure that people can, in the first place, access NHS dental practices.

Last week, I had a chat with the BDA, and one of the challenging areas is the shortage of anaesthetic consultants, which leads to a number of the waiting times figures. Even there, since 2006, we have increased the numbers of anaesthetic consultants by 41.7 per cent—moving from 549 up to 778.

I am in no way suggesting that everything is rosy. I accept that some of the waits and more challenging cases are unacceptable, particularly when we are talking about children, who are often in pain. We need to continue to do better around that. We are making a difference, and the waiting times improvement plan is designed to make it even better.

Alex Cole-Hamilton (Liberal Democrat, Edinburgh Western)

I have a constituent who requires both in-patient and day-case support, but she is not getting any treatment. In 1995, Angela Mulhern fell victim to William John Duff. He performed a series of unnecessary and incompetent dental surgical procedures, which have caused tens of thousands of pounds’ worth of damage to her teeth and jawbone and left her in constant pain. Ms Mulhern underwent the treatment as an NHS patient yet the Scottish NHS has not even offered to carry out the necessary remedial work. Will the minister agree to meet Ms Mulhern and me?

Joe FitzPatrick (Scottish National Party, Dundee City West)

I have no awareness of that case. If, in the first instance, Mr Cole-Hamilton writes to me about it, we can discuss how we should take that forward.

The Presiding Officer

Four members wish to ask supplementary questions but we have little time this afternoon. I will be harsh and not take any of those questions. I encourage the members to submit written questions. I apologise to Monica Lennon, Miles Briggs, James Dornan and Neil Findlay.

Education Reforms

Christine Grahame (Scottish National Party, Midlothian South, Tweeddale and Lauderdale)

The next item of business is a statement by John Swinney that provides an update on Scotland’s education reforms. The Deputy First Minister will take questions at the end of his statement, so there should be no interventions or interruptions.

John Swinney (Scottish National Party, Perthshire North)

Presiding Officer, the relentless focus of this Government is to deliver an education system in Scotland that raises attainment for all, closes the attainment gap and enables all children and young people to fulfil their potential.

During my statement to Parliament on 26 June last year, I set out our landmark agreement with Scotland’s local councils, which provided a clear and shared agenda for the empowerment of schools, instead of introducing legislation. At that time, I undertook to return to Parliament with my assessment of whether sufficient progress on our shared ambition had been made to satisfy me that the non-legislative route was the right one. Therefore, I am grateful for this opportunity to provide Parliament with an update on the progress around school empowerment and our related programme of education reform. My statement this afternoon is accompanied by a publication that provides additional detail on work in this area.

International evidence demonstrates that successful education systems are those in which decisions about the education of our children are made as close to them as possible. That is why we are committed to empowering schools to empower headteachers, teachers, parents, pupils and the wider school community to make the key decisions that affect the educational outcomes for children and young people. With our partners in local government, professional associations and other stakeholders, we are taking steps to

“put teachers, parents and communities in the driving seat”.

Together, we are building a school and teacher-led education system.

A crucial element of this Government’s agenda has been recognition of the importance of excellent school leadership and, in turn, the empowering of headteachers to more effectively lead our schools. Published in February, the headteachers charter aims to ensure that schools have wide-ranging decision-making powers over what matters—learning, teaching and the curriculum, their resources, staffing and budgets—and that they make those decisions by involving their whole school community. That delivers on the policy intention that was originally part of the draft Education (Scotland) Bill. The charter supports a culture of empowerment that enables all professionals to contribute to the agenda of improvement.

The charter, in combination with linked school leaders guidance, is now being used by schools and—crucially—has been co-produced. I am grateful for the shared work that led to the production of the charter, and I am particularly pleased at the pace with which it has been delivered. I am also pleased to be able to report that, today, we have published updated devolved school management guidelines. The new guidance, too, has been developed in partnership with local government, to improve on existing advice and—crucially—to reflect the expectations and opportunities of an empowered school system, including the headteachers charter.

The Scottish attainment challenge and pupil equity funding have empowered schools by allowing them to design solutions and take decisions that are specific to their school community. It is important that we now capitalise on that and deliver broader budgetary decision making to our schools.

I have committed to providing high-quality support for school leaders, many of whom are beginning to operate in an increasingly empowered environment. With that in mind, I am pleased that, last month, Education Scotland expanded the support that it provides for headteachers and will now provide a range of professional learning opportunities that are specifically focused on school empowerment. That, in combination with our investment in the Columba 1400 headteacher leadership academies, with the Hunter Foundation, will provide school leaders with the skills and confidence to flourish and deliver improved outcomes for the communities that they serve.

We are deepening the support that is available to schools, through regional improvement collaboratives. Through enhanced engagement and support across local government, which is supported by additional Scottish Government funding of around £5 million this school year and focused support from Education Scotland, the regional improvement collaboratives have significantly enhanced their capacity to support collaborative working across the system and deliver region-wide approaches to improving outcomes for our children and young people. That is evidenced by the delivery of the September 2018 regional improvement plans, increased engagement with and support of the teachers networks across each region, and focused regional interventions on attainment, curriculum development, leadership development and quality improvement.

An interim review of the establishment of the regional improvement collaboratives, which was published in February, recognised the significant early progress that has been made in establishing local governance, leadership and buy-in across each regional improvement collaborative area. We will commission a further review later this year, again in partnership with local government, to assess development and impact.

We are committed to ensuring that pupils and parents are provided with the opportunity to influence decisions that relate to their school. That is more important than ever in an increasingly empowered school system. In July 2018, we developed a comprehensive plan, in conjunction with local government, to improve parental involvement and engagement: “‘Learning together’: Scotland’s national action plan on parental involvement, parental engagement, family learning and learning at home 2018-2021”. The plan demonstrates our long-term commitment to putting parents at the heart of their children’s learning and reflects the importance that we place on parental engagement in a range of Scottish Government education policies and initiatives.

Learners in our schools rightly expect their voices to be heard and valued. The headteachers charter places a central expectation on headteachers—and, through that, to the wider empowered system—to support and encourage children and young people to participate in decisions about their own learning and the life of the learning community. In April 2018, in advance of the school empowerment reforms, Education Scotland published practical guidance to schools. We will continue to promote that guidance and support to schools, so that they can better support learner participation.

It is important that the work to take forward the joint agreement is placed in the context of wider education reforms. In particular, I was pleased to note last month’s publication of the report of the independent panel on career pathways for teachers. It is an exciting report, which will generate new and ambitious career pathways for teachers and increase the attractiveness of the profession. I expect the Scottish negotiating committee for teachers to put in place the conditions for new pathways by August 2021.

It is also important that we recognise and support a wider range of practitioners who work with our children and young people. We decided against the creation of a broader education workforce council, but we are working with local authorities to enhance the support that is offered to a wide range of education practitioners, including college lecturers, instrumental music instructors, school librarians and home-school link workers.

It is vital that we understand the impact of our endeavours in empowering Scottish schools. We need to know where change is having a positive effect and where greater focus might be required. The early evidence that is available provides me with cautious optimism that the types of empowered practice that I expect to see are now becoming more common.

Education Scotland has previously published thematic inspections on readiness for empowerment and on curriculum leadership, and it has today published the findings of a further inspection on parent and pupil participation. While making it clear that we are only part of the way through this journey, the reports indicate that local authorities are taking positive steps to embrace the principles of empowerment as set out in the joint agreement and that the education system is committed to collaboration and co-production.

The readiness for empowerment review, which was published in December 2018, noted that

“almost all local authorities are committed to developing an empowered education system with the aim of improving outcomes for learners, reducing inequalities and closing the attainment gap.”

It is important that we all take responsibility for the change process, and I am pleased that three local authorities are trialling a self-evaluation framework. I am also pleased that an overarching evaluation strategy is being developed that will bring together all available evidence on empowerment in our schools, which will help us to monitor progress.

Equally important is the assurance that I have received jointly from Her Majesty’s chief inspector of education, as chair of the joint agreement steering group, that partners remain firmly engaged in and committed to the work. That has highlighted to me and to the Convention of Scottish Local Authorities that real progress has been made and that the practice of empowerment and school-based decision making is becoming increasingly evident in our schools.

The chief inspector has stressed to me the importance and the value of the collaborative approach that we are taking with local government and other partners in the delivery of the reforms. She believes that progress has been made sooner than would have been the case through legislation and reassures me of the continued commitment of all partners to work together in supporting the delivery of an empowered system that improves outcomes for children and young people. That includes a clear objective of promoting and building on the work that has been done to date, developing further guidance and engaging with the wider system—with schools, teachers and others who are involved in children’s learning.

Although I am heartened by those positive messages, I am under no illusion that we remain at a relatively early stage in our efforts to change the culture of school education in Scotland. The joint agreement and the recently agreed teachers’ pay deal provide us with the stability that is required for real and long-term system change to take place, but we must maintain our collective focus and ensure that meaningful improvements are delivered.

When I last addressed members on the issue, in June 2018, I made it clear that, if sufficient progress had not been made in the forthcoming 12 months, I would return to Parliament and introduce an education bill. This afternoon, I have set out my view that progress is being made in a genuinely collaborative spirit and that a culture that is based around empowerment is starting to take root in our schools. It is clear to me that we would not have come so far in such a short period if we had relied on introducing an education bill. I am also assured that the Government’s long-term vision of a school-led education system is shared by our partners in local government. The chief inspector has further endorsed and recommended to me the continuation of our partnership approach.

Given all of that, I am able to confirm that the Scottish Government will not introduce an education bill as a means of driving school empowerment. Instead, we will continue to work in partnership with local government, teacher representatives and the wider education sector, and we will collectively ensure that schools are supported to take the key decisions that are relevant to them. I am optimistic that our collaborative approach, through which we share a view of empowerment and collectively take responsibility for change, will result in improved outcomes for Scotland’s children and young people.

Achieving excellence and equity for all of our children and young people is the core purpose of this Government, and these reforms are central to that work. Given the importance of this agenda, I would be pleased to return to Parliament in a year’s time once again to provide an update on this vital work.

The Deputy Presiding Officer

The cabinet secretary will now take questions on his statement. As usual, we have about 20 minutes.

Elizabeth Smith (Conservative, Mid Scotland and Fife)

I thank the cabinet secretary for prior sight of his statement.

On the programme for government, the First Minister told us in 2017 that

“A new Education Bill will deliver the biggest and the most radical change to how our schools are run”.—[

Official Report,

5 September 2017, c 13.]

Exactly a year ago, however, the cabinet secretary decided to scrap the bill, and defended the U-turn by telling us that without legislation faster progress would be made in improving school standards. Now he is telling us that he has “cautious optimism” that standards are improving and that the improvement has been possible because of the absence of an education bill.

You could not make it up—there are no hard facts whatsoever to prove his contention. Indeed, it will not have escaped the cabinet secretary’s notice that the Education and Skills Committee recently reported that

“The lack of baseline data means no meaningful conclusions on upward or downward trends can be reached, at a time of reform within Scottish education.”

What evidence has the cabinet secretary found, that nobody else has found, that proves that standards are improving across the board? Does he really believe that the evidence supports his view when he says that

“we would not have come so far”

if an education bill had been introduced? Does he believe that, when a local authority takes a blanket decision to move all its schools to a six-column subject choice structure for pupils in S4, headteachers enjoy the greater autonomy that was promised by the Scottish Government?

John Swinney (Scottish National Party, Perthshire North)

That question covered quite a lot of topics, Presiding Officer, so you will forgive me as I try to address them.

In my statement to Parliament, I have recorded that I believe that faster progress has been delivered because of the collaborative route, as opposed to a legislative route, that we have taken. I cite the following evidence. First, if we had been involved in a legislative process we would not have been able to focus partners on delivery of some of the specific components of an education bill.

The headteachers charter is now available. It has been delivered and implemented in Scottish education. If we had waited for a bill, the headteachers charter would have been available only once we had enacted the provision. That is the first piece of evidence.

The second piece of evidence is the information that has been provided to me by the chief inspector of education on the assessment that she and Education Scotland have been doing through thematic inspection of how the approach that we are setting out has been applied by all partners, and through her chairing of the steering group, which is implementing the agenda. I cite that as evidence that faster progress is being delivered.

Liz Smith moved on to talk about baseline data on performance in the education system. I know that there are issues to be rehearsed in terms of the information that we publish routinely as part of the national improvement framework, in which we set out, year on year, the progress that has been made by young people in our education system, with greater detail than was ever the case in the past. Information is published on primary 1, primary 4, primary 7, and S3 levels: no such comprehensive detail was published in the past.

The data that we are all familiar with demonstrates that attainment is improving in our education system, and that the attainment gap has been closing. That data has previously been well rehearsed in Parliament.

Finally, I will move on to subject choice. Curriculum control will, under the headteachers charter, which is a relatively recent publication, be vested in individual schools. We are encouraging collaboration among schools in our education system. For some schools, collaborating with each other over the availability of subject choice, so that a broader subject choice can be made available than would be the case if everything was contained in an individual school, is required. There will be a role for local authorities in that collaboration. I know, as is authenticated in the information that I have had from Her Majesty’s Inspectorate of Education, that local authorities are genuinely committed to that process. We should welcome that as evidence of the creation of an empowered education system.

The Deputy Presiding Officer

I understand that there were a lot of questions, so that was a long answer. I also appreciate that front-bench members should get the chance to ask their questions. However, after them, we will have to have crisp questions and answers, because 12 members want to ask questions, and Tavish Scott is already in a tizzy.

Iain Gray (Labour, East Lothian)

Thank you, Presiding Officer. I also thank the cabinet secretary for early sight of his statement.

We have known for a year what the statement would say. Everyone knows that the education bill was dropped because no one would have supported it, and everyone knew that Mr Swinney would be back in Parliament claiming great progress, so that he could finally put his flagship legislation out of its misery.

However, the reforms still do not address the real issues in our schools—squeezed budgets, teacher shortages, a narrowing curriculum, a lack of rigorous data on literacy and numeracy, standardised tests that parents do not want and which teachers do not rate, an explosion in multilevel teaching, and a crisis in support for pupils who have additional support needs.

Having spent a year developing and delivering an empowered schools diagram, will the cabinet secretary now turn his attention to those real problems that are faced daily by real teachers, pupils and parents in real schools?

John Swinney (Scottish National Party, Perthshire North)

I spend all my time focused on the real issues that face Scottish education, which is why I follow the international evidence that says that a successful education system is one in which decisions are taken as close as possible to young people. That is the culture and approach that we are trying to create through the empowered schools reforms.

I will offer a few observations on the various points that Mr Gray raised. Local authority budgets for education have risen four years in a row, with the most recent available data showing a substantial increase in real terms. Teacher numbers are at their highest since 2010, and we have the largest number of primary teachers since 1980.

I know that the Education and Skills Committee has been looking at subject choice: I think that there is a much broader choice available to young people in Scottish education than there was when I was at school.

On Scottish national standardised assessments, we commissioned an independent review to examine the issues. That review has reported and has demonstrated the value of standardised assessments.

Mr Gray knows that I am actively working to strengthen and improve the support that is available to meet the needs of young people with additional support needs. I will continue to focus on that in the period ahead.

I hope that that reassures Mr Gray that the Government and local authority partners are doing everything that is humanly possible to address all the key issues that concern him.

The Deputy Presiding Officer

There are 13 questioners and 10 minutes. You are being told.

Alison Johnstone (Green, Lothian)

The intention behind devolving powers to schools is to empower headteachers as education leaders, but it is not clear what accountability mechanisms are in place to ensure effective oversight and scrutiny of headteachers, who now have enhanced powers over budgets and staffing. When power was with the local authority, we had democratically elected councillors to scrutinise. What mechanisms are in place, through the headteachers charter and the devolved school management guidelines, to ensure effective oversight?

John Swinney (Scottish National Party, Perthshire North)

Headteachers are senior employees of local authorities and will remain so under the reforms, which means that there is a direct line of accountability in relation to employment issues.

However, headteachers have much broader accountability—to pupils, to parents, to communities and to staff in terms of how schools fulfil the needs of young people. An empowered school must have a conversation with its community to ensure that the needs of all learners are being met.

Tavish Scott (Liberal Democrat, Shetland Islands)

Is not the reality for parents and teachers unspent pupil equity fund money, unfilled headteacher vacancies and more bureaucracy in classrooms through yet more guidance? If the education secretary wants to work with teachers, as he has said to Parliament today, why does he not listen to primary 1 teachers and drop national testing of four-year-old and five-year-old boys and girls?

John Swinney (Scottish National Party, Perthshire North)

I listened to the independent review that I commissioned on that question, which found that there was significant value in primary 1 standardised assessments in terms of their contributing to informing the judgment of teachers. I trust teachers’ judgment, but I also listen to teachers who make the plea for moderation in the education system so that they can understand the levels and standards that they are trying to achieve for young people. Standardised assessments help to inform that judgment.

Clare Adamson (Scottish National Party, Motherwell and Wishaw)

The cabinet secretary has previously said—I quote—that

“the best decisions about children’s education are taken by people who know them best—their teachers, headteachers and parents, as well as young people”

Can the cabinet secretary outline how his decision to fast-track implementation of his reforms has helped to achieve those “best decisions”?

John Swinney (Scottish National Party, Perthshire North)

The quotation that Clare Adamson read out reflects my reading of the international evidence, which argues for more and more decisions to be taken in the classroom by individual empowered classroom teachers. At the heart of the reform agenda, and at the heart of the pay and workload deal that we have arrived at with professional associations and local authority partners, is the creation of a sense of teacher autonomy and agency, such that teachers can confidently make judgments about the educational journey of young people. The agenda that I have set out today supports and enhances that.

Jeremy Balfour (Conservative, Lothian)

In his statement this time last year, the Deputy First Minister spoke of consensus building being at the heart of his approach following the shelving of the education bill. Given that we were open to working in consensus to pass the bill and given the many defeats on education that the Government has faced in this Parliament in the past year, does the Deputy First Minister now see that reforms should be implemented in the right way, which is through the democratic process of this Parliament?

John Swinney (Scottish National Party, Perthshire North)

The reform is being managed through the democratic process of this Parliament, and it is being managed in collaboration with our local authority partners, who have statutory responsibility for the delivery of education.

Parliament often encourages me to work collaboratively with other people. That is precisely what I have done on this agenda, and we have made faster progress as a consequence.

Jenny Gilruth (Scottish National Party, Mid Fife and Glenrothes)

The cabinet secretary will be aware of the reduction in subject-specific principal teacher roles coupled with a movement to faculty heads in recent years, particularly in our secondaries. Will he provide more detail on what alternative routes for promotion might be available for teachers so that we can make sure that we keep talent in our classrooms?

John Swinney (Scottish National Party, Perthshire North)

I encourage members to look at the report that has been produced by the working group on career pathways, led by Moyra Boland of the University of Glasgow. It is a very refreshing read that covers the creation of new pathways in subject specialism, pedagogical specialism and disciplines within the education system, such as additional support needs. The review undertook work on my behalf to create alternative routes to administrative leadership within the education system, so that we could entrench outstanding classroom practice within our classrooms and celebrate it, and that is what the review has generated.

Mary Fee (Labour, West Scotland)

Provision of services for those with additional support needs is fragmented across local authorities and, similarly, we know that local authorities use a variety of models for provision of the home link service. What steps will the cabinet secretary take to ensure that home link staff are fully resourced and supported?

John Swinney (Scottish National Party, Perthshire North)

Home link staff play a valuable role in our education system. I see increasing numbers of schools opting to use pupil equity funding to establish much greater proficiency and effectiveness in home school link workers, and as a consequence of those efforts, pupil attendance, participation and attainment are improving.

The Government works actively with our local authority partners on the resourcing of all aspects of the education system. As I indicated, we see strong and effective practice emerging out of pupil equity funding, which is strengthening the areas of activity in which Mary Fee is interested.

Rona Mackay (Scottish National Party, Strathkelvin and Bearsden)

Will the cabinet secretary expand on how his reforms will help to raise standards and close the poverty-related attainment gap?

John Swinney (Scottish National Party, Perthshire North)

One of the very clear outcomes of the implementation of the Scottish attainment challenge and pupil equity funding has been an ever-sharper focus within the education system on the young people who face barriers to fulfilling their potential as a consequence of their background and poverty. That focus has always been in our education system, but PEF and the Scottish attainment challenge have intensified it. As a consequence, we are now seeing real improvements in the performance of young people and the closing of the attainment gap. Data will be published to demonstrate the pattern that that takes in the years to come.

Jamie Halcro Johnston (Conservative, Highlands and Islands)

The Scottish Government statistics for 2017-18 show that the gap between the most and least affluent people going to university has increased in the last year, and the official statistics from last year’s exam results show that the attainment gap between school pupils from the poorest and richest areas has also increased. Can the cabinet secretary say whether he thinks that the back-door reforms have been successful in that regard?

John Swinney (Scottish National Party, Perthshire North)

On the measures that we have published, the attainment gap is clearly closing and has closed over time. On the point about access to university education, the proportion of young people who are going to university from the most deprived areas in Scotland is at a record high. I do not understand the data that Mr Halcro Johnston is marshalling to undermine the outstanding achievements and performance that are a consequence of our focus on widening access in higher education.

Tom Arthur (Scottish National Party, Renfrewshire South)

How has the Scottish Government ensured that the voices of parents and pupils have been heard throughout the reform process, and will continue to be heard, given the benefit that that collaborative approach is having on schools in my constituency, such as St Anthony’s in Johnstone?

John Swinney (Scottish National Party, Perthshire North)

The National Parent Forum of Scotland is a key partner in all our reform activity. We listen closely to the content of its thinking on all aspects of the education reform journey, and we will continue to do so as we strengthen parent and pupil voices in education.

Daniel Johnson (Labour, Edinburgh Southern)

The one hard figure in the statement is the £5 million for regional improvement collaboratives. Can the cabinet secretary confirm that that will be recurring funding? How many net new roles has that created within the education system, and can he elaborate and give a specific example of the interventions that the regional collaboratives have been implementing over the last year?

The Deputy Presiding Officer

That is more than one question.

John Swinney (Scottish National Party, Perthshire North)

I cannot give Mr Johnson the head count number on new roles created through the funding for regional improvement collaboratives, but I will happily write to him about that. Concrete examples of what the collaboratives are doing include running improvements in literacy and numeracy programmes with tried and tested evidence-based practice to inform and strengthen professional development; delivering moderation support across regional boundaries to make sure that teachers across the broad general education phase have a better understanding of standards; and they are putting in place exchanges of learning on the measures that close the attainment gap fastest in areas of deprivation, to ensure that the learning can be shared across the board. Our regional improvement collaboratives are taking forward a real collaborative spirit and sharing good educational practice across the system.

Gordon MacDonald (Scottish National Party, Edinburgh Pentlands)

I welcome the Scottish Government’s on-going commitment to empowering teachers and its securing of a landmark deal on teachers’ pay, but can the cabinet secretary expand on the support that will be provided to help to reduce teachers’ unnecessary work load?

The Deputy Presiding Officer

A short expansion, cabinet secretary.

John Swinney (Scottish National Party, Perthshire North)

The whole concept of teacher agency is about empowering our teachers to have the professional confidence to make judgements about all aspects of the curriculum and, crucially, their workload. I have just come from a meeting of the Scottish Education Council, at which all players in Scottish education committed to further joint work on reducing unnecessary teacher bureaucracy, to enable teachers to focus on the things that we all want them to focus on: the learning and teaching of young people in Scotland.

The Deputy Presiding Officer

That concludes the questions. I apologise to James Dornan and Neil Findlay, who were additional questioners; I did not quite manage to reach you.

Business Motion

Kenneth Macintosh (Labour, West Scotland)

The next item of business is consideration of business motion S5M-17902, in the name of Graeme Dey, on behalf of the Parliamentary Bureau, setting out a timetable for stage 3 consideration of the Management of Offenders (Scotland) Bill.

Motion moved,

That the Parliament agrees that, during stage 3 of the Management of Offenders (Scotland) Bill, debate on groups of amendments shall, subject to Rule 9.8.4A, be brought to a conclusion by the time limit indicated, those time limits being calculated from when the stage begins and excluding any periods when other business is under consideration or when a meeting of the Parliament is suspended (other than a suspension following the first division in the stage being called) or otherwise not in progress:

Groups 1 to 3: 55 minutes

Groups 4 to 6: 1 hour 30 minutes

Groups 7 to 10: 2 hours 10 minutes

Groups 11 to 14: 3 hours 10 minutes—[

Graeme Dey

.]

Motion agreed to.

Management of Offenders (Scotland) Bill: Stage 3

Kenneth Macintosh (Labour, West Scotland)

The next item is consideration of the stage 3 proceedings on the Management of Offenders (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, the marshalled list and the groupings of amendments.

I remind members that the division bell will sound, and that proceedings will be suspended, for five minutes for the first division of the afternoon. After that, there will be a 30-second vote. Thereafter, there will be a one-minute period for voting after the first division following a debate. Members who wish to speak in a debate should press their request-to-speak buttons as soon as I call the group, or as soon as possible after that.

The Presiding Officer

Group 1 is on part 1 terminology. Before I call the cabinet secretary, I point out that, throughout the group, there are amendments that, if agreed to, would pre-empt other amendments in the group. In the interests of time, I do not propose to mention the pre-emptions on each occasion that they occur—I refer members to the groupings for pre-emption information. Amendment 4, in the name of the Cabinet Secretary for Justice, Humza Yousaf, is grouped with the amendments as shown.

Humza Yousaf (Scottish National Party, Glasgow Pollok)

At stage 2, I supported Daniel Johnson’s amendments, which removed the term “offender” from part 1 of the bill. The Government listened to the concerns that were expressed and supported the changes so that nobody would feel stigmatised by the language of the legislation. At stage 2, when I signalled that I supported the principle behind Daniel Johnson’s amendments, I indicated that the Government would need time to reflect on the technical impact on the drafting of the bill, and that it might need to revisit the terminology for readability and workability.

As things stand, the label “relevant person” does not work, because it is undefined. As we reflected on how to address that problem in a way that would be consistent with the Justice Committee’s view at stage 2, we realised that there is, in fact, no need at all for the bill to apply labels to people who are subject to electronic monitoring. We need not call them “relevant persons”; they are simply persons who happen to be subject to a monitoring requirement. The amendments in my name therefore get rid of the labels altogether, with only a few exceptions where the label “monitored person” is used to distinguish the person who is subject to a monitoring requirement from the person who is designated to carry out the monitoring.

Amendment 145 is a clarificatory amendment to put beyond doubt that references to disposals in part 1 are not confined to the final disposals in a case.

I invite members to support the amendments in my name in the group, and to reject the amendments from Liam Kerr, which would reinstate the word “offender” in direct contradiction of the decision of the Justice Committee at stage 2. To be clear, using the label “offender” does nothing to improve the bill’s technical precision and has no other legal effect.

I move amendment 4.

Liam Kerr (Conservative, North East Scotland)

All my amendments in the group seek to reverse Daniel Johnson’s terminology amendments at stage 2. Parliament cannot fail to have been aware of the considerable public outcry when those amendments were agreed to at stage 2. It is important that the full chamber has an opportunity to reflect on the committee’s decision.

This is the Management of Offenders (Scotland) Bill. Its purpose is to deal with people who have offended—that is, committed a crime. Laws mean something and they should be clear. If we are referring to offenders, we should call them “offenders”. Parliament will be interested to know that the key argument that was presented in committee is that labelling people as offenders after they have served their time does not help rehabilitation. I understand that point. However, most of these provisions deal with criminals before they have completed their sentence. The bill talks about how we manage those who are in the system, not so much those who have completed their sentence.

Liam McArthur (Liberal Democrat, Orkney Islands)

Will the member take an intervention?

Liam Kerr (Conservative, North East Scotland)

As I presume that Mr McArthur will speak later, I will not—I want to move on.

Finally, there is no doubt that many victims of crime already feel that more is being done to support offenders than to support those who have suffered. We cannot, and should not, airbrush from history the fact that a crime—an offence—has been committed. For those reasons, I ask Parliament to recognise that an offender is an offender, and to vote in favour of my amendments.

I move amendment 4A.

Daniel Johnson (Labour, Edinburgh Southern)

Given that my amendments at stage 2 created this, I feel something of a responsibility to speak up for myself. However, I will be very brief; indeed, I will try to limit myself to a self-imposed 60-second rule throughout the stage 3 amendment debate.

Members

Hear, hear!

Daniel Johnson (Labour, Edinburgh Southern)

As the cabinet secretary said, labels do not help. Good legislation should have well-defined terminology and should not need to refer to people by anything other than the term “people”. For that reason, we should support the Government’s amendments and reject the Conservative ones.

The Presiding Officer

Thank you very much. That was a very popular comment from Mr Johnson.

Liam McArthur (Liberal Democrat, Orkney Islands)

I was not intending to observe the 60-second rule. I was not even intending to speak until Liam Kerr’s invitation to do so.

The point that was made by the cabinet secretary and Daniel Johnson about stigmatisation is fair and valid. It reinforces what we heard in evidence sessions throughout our consideration of the bill.

The other important fact is that extending these provisions to people prior to any ruling from the court would be impossible were it not for the redefinition that the cabinet secretary has proposed. We will certainly support his amendments.

John Finnie (Green, Highlands and Islands)

I endorse the comments of the cabinet secretary and those of my colleagues Daniel Johnson and Liam McArthur. The term “airbrush” is pejorative, and it was meant as a pejorative term. I most certainly will not support Liam Kerr’s position.

Humza Yousaf (Scottish National Party, Glasgow Pollok)

I have nothing much to add other than to thank colleagues for their contributions.

I will say to Liam Kerr something that I have said since taking on this role a year ago—we should always be driven by the data and by the experts who are in front of us. I know that he has a lot of respect for organisations such as the Wise Group and the many other groups that work with those who have committed crimes in the past. Those groups tell us that language is important. This change in the legislation will not make it illegal or criminalise anybody for using the word “offender”; they can use that word in their daily discourse if they wish to do so. However, as legislators, we have a responsibility to listen to experts and to change the law accordingly. I am delighted to have the support of—it seems—the majority of parliamentarians to do that.

Liam Kerr (Conservative, North East Scotland)

Like the cabinet secretary, I do not have a great deal to add other than to say that I accept the point that language is important—that is why we must call it as it is. For that reason, I will press amendment 4A.

The Presiding Officer

The question is, that amendment 4A be agreed. Are we agreed?

Members

No.

The Presiding Officer

There will be a division. As this is the first division of the afternoon, we will suspend for five minutes while I summon members to the chamber.

15:02 Meeting suspended.

15:07 On resuming—

We move to the division on amendment 4A.

The Presiding Officer

The result of the division is: For 26, Against 84, Abstentions 0.

Amendment 4A disagreed to.

Amendment 4B moved—[Liam Kerr].

The question is, that amendment 4B be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 27, Against 85, Abstentions 0.

Amendment 4B disagreed to.

Amendment 4 pre-empts amendments 5 and 6. I ask the cabinet secretary to say whether he wishes to press or withdraw amendment 4.

Humza Yousaf (Scottish National Party, Glasgow Pollok)

I press amendment 4.

The Presiding Officer

The question is, that amendment 4 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 85, Against 27, Abstentions 0.

Amendment 4 agreed to.

Before I move on to amendment 7, I point out that there are a huge number of amendments that pre-empt other amendments. At this point, I ask Mr Kerr to say whether he wishes to move amendments 8, 10, 12 and 14.

Liam Kerr (Conservative, North East Scotland)

With your permission, Presiding Officer, I will speak in response to that, rather than just say yes or no.

Those amendments in my name seek to make the same changes as amendments 4A and 4B sought to make. I maintain that that is the right thing to do for certainty and semantics, but it is clear to me that only the Scottish Conservatives are with me on that. There are extremely important debates to have this afternoon so, to ensure that there is time for that and given that my comments to amendments 4A and 4B are on the record, I will not move my further amendments in the group or any similar ones.

The Presiding Officer

Thank you, Mr Kerr. I highlight that any other member is entitled to move any of the amendments at the point at which they are reached. To ensure that that can happen, I would normally call each amendment in turn but, in these exceptional circumstances in which we have a large number of amendments that are all directed at the same issue, I propose to try to speed up the process slightly. The amendments about this particular subject appear in five blocks, and I will take the same approach for each block of amendments.

Does any other member wish to move any of the amendments 8, 10, 12 or 14?

Members

No.

The Presiding Officer

As no one wishes to move any of those amendments and they all do the same thing, I now invite the cabinet secretary to move amendments 7, 9, 11 and 13 en bloc.

Amendments 7, 9, 11 and 13 moved—[Humza Yousaf]—and agreed to.

Group 2 is on availability of information to social work when court disposing of a case. Amendment 144, in the name of Liam Kerr, is the only amendment in the group.

Liam Kerr (Conservative, North East Scotland)

I have resubmitted this amendment to allow Parliament to consider its position. The principle founds upon the fact that, during stage 1 evidence, a Social Work Scotland witness told us:

“On the information and evidence that criminal justice social work receives to inform our risk and needs assessment ... what is sorely lacking is the summaries of evidence that are narrated in court.”

He went on:

“Without it, we are entirely reliant on the offender’s version of events.”—[

Official Report

,

Justice Committee

, 8 May 2018; c 8.]

We know that summaries of court evidence are critical to an objective and accurate risk assessment and that without them, social workers will have less information than they should have about how decisions may affect victims. My concern is that victims and the public are unnecessarily put at risk because the right information is not being shared.

I lodged an identical amendment at stage 2, when members had several concerns. John Finnie asked what status a summary would have. The answer is that it would have only the weight that the social workers preparing their risk and needs assessment attributed to it. The definitive document remains the risk and needs assessment that is prepared by criminal justice social work.

John Finnie (Green, Highlands and Islands)

The member will perhaps come on to explain the analysis that he has done of the impact that the amendment might have on the court service and on the already pressed criminal justice social work service.

Liam Kerr (Conservative, North East Scotland)

That is a reasonable point, and I am grateful for it. At stage 2, several members raised the concern that the court system would not have the resources to prepare a summary. I understand that point, but surely if something is the right thing to do, it is up to the Government to assess what resources the courts would need, especially for such a crucial bit of communication between the courts and criminal justice social work.

The cabinet secretary said in committee that there is no mechanism across all court business for routinely collecting and transmitting such evidence. Surely that is the problem, and that is what my amendment seeks to address. If agreed to, it would be up to the court to decide what form the summary took, and I am sure that it could create a format that would work best for it.

My amendment seeks to ensure that social workers have as much evidence as practical in front of them before making crucial risk assessments, which will inform judges’ decisions about whether an offender is safe to be on our streets.

I believe that I have answered the challenges, and I seek Parliament’s approval of the amendment.

I move amendment 144.

Daniel Johnson (Labour, Edinburgh Southern)

I support the amendment. The committee heard one recurring theme throughout its evidence taking and, indeed, in relation to other issues that it has dealt with in the past year or so: the lack of information and data, especially from, but also to, the courts. I think that the amendment makes good provision for ensuring that that would be improved, and it merits support.

Humza Yousaf (Scottish National Party, Glasgow Pollok)

An amendment in exactly the same form as amendment 144 was defeated at stage 2, so I am surprised that it has been lodged at stage 3.

As Liam Kerr has explained, the amendment seeks to place a new obligation on the Scottish Courts and Tribunals Service to make a summary of evidence provided in a case available to local authorities exercising their social work function. When we discussed the issue previously at committee, John Finnie asked Liam Kerr about the practicalities of that, who would produce the summary and what its status would be. We did not get answers to those questions then, and I am not convinced we have got them from Mr Kerr’s remarks today.

Fulton MacGregor pressed Liam Kerr—quite forensically, I thought—about whether he had had any discussions with Social Work Scotland, social workers or, indeed, the relevant agencies about the amendment. The answer that Liam Kerr gave was a categorical no. I am interested in whether he has now had discussions with Social Work Scotland or, indeed, the relevant agencies. I am happy to give way, if he wants to say that he has.

If we are seeking to improve the process of risk assessment, it is crucial that we are led by the considerations of the Risk Management Authority about what information is most relevant to risk. Accordingly, we need to be cautious as parliamentarians that we do not seek to pre-empt those considerations and predetermine the information that is to be considered as having a bearing on risk.

Amendment 144 would extend across all forms of court-imposed electronic monitoring. A social work report is prepared for the court when considering the imposition of a restriction of liberty order—an RLO—so social work would be aware of the background to the cases anyway. Therefore, there would seem to be limited merit in requiring the court to provide to the local authority information that it is already likely to have or to be aware of. In addition, social work involvement in monitoring an individual serving a community sentence varies depending on the community sentence imposed. For example, there is no requirement for a supervising officer to be appointed by the local authority for an individual sentenced to an RLO. The provision of a summary of the evidence in those circumstances would clearly be a pointless exercise.

In practical terms, I also note that it is not clear how the court would be able to identify which local authority is the relevant authority at the time of sentencing.

I draw Liam Kerr’s attention to amendment 126, in my name, which would create a duty to co-operate between, among others, the Scottish ministers and the Scottish Courts and Tribunals Service. That duty to co-operate would include the sharing of information. That would address Liam Kerr’s concerns about the sharing of information, but would—rightly—retain the flexibility for the Scottish Courts and Tribunals Service to determine what information it can usefully and practically provide.

Amendment 144 presents the same challenges as its predecessor did when it was discussed at stage 2. I ask Liam Kerr not to press amendment 144. If it is pressed, I urge members to reject it.

Liam Kerr (Conservative, North East Scotland)

I thank those members who have spoken, and I am grateful to Daniel Johnson for his support. Is the amendment in the exact form as my amendment at stage 2? Yes, it is, because it was right at stage 2 and it is still right at stage 3.

The cabinet secretary said that he did not get the answers, but I am not the Government. I am not in a position to answer those questions, but I can put forward the principle. The cabinet secretary said that we would discuss the issue before stage 3. That has not happened, so I am not sure how the cabinet secretary could have helped me.

The point about—

Humza Yousaf (Scottish National Party, Glasgow Pollok)

Will Liam Kerr give way?

Liam Kerr (Conservative, North East Scotland)

I will not, if that is alright with the cabinet secretary—it is not a major point.

I quoted what Social Work Scotland said when this was discussed at stage 2, and that is what the Justice Committee heard. What is sorely lacking are the summaries of evidence that are narrated in court; important information may be missing because of that, particularly in relation to victims.

I also draw the cabinet secretary’s attention to recommendation 182 of the Justice Committee’s stage 1 report, in which the committee called on the Scottish Government to explore with the SCTS how to

“routinely supply criminal justice social workers with summaries of evidence”.

The cabinet secretary says that there is “limited merit” in that, but the Justice Committee was clear on the merit. That is why the Parliament must take this forward.

The cabinet secretary alluded to amendment 126. For the avoidance of doubt, that is a good amendment and we will be voting for it. However, that does not negate why we should vote for amendment 144, which I will press.

The Presiding Officer

The question is, that amendment 144, in the name of Liam Kerr, be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 44, Against 69, Abstentions 0.

Amendment 144 disagreed to.

Amendment 15 moved—[Humza Yousaf]—and agreed to.

I ask Liam Kerr to say whether he intends to move amendments 17, 20, 22, 24, 25, 27, 29, 31, 33, 36, 38, 40, 42, 44, 46, 48, 50, 51, 54, 56, 57 and 59?

Liam Kerr (Conservative, North East Scotland)

No.

Amendment 17 not moved.

The Presiding Officer

I invite the cabinet secretary to move amendments 18, 19, 21, 23, 26, 28, 30, 32, 34, 145, 37, 39, 41, 43, 45, 47, 49, 52, 53, 55, 58 and 60.

Amendments 18, 19, 21 and 23 moved—[Humza Yousaf]—and agreed to.

Section 4—More about the list of disposals

Amendment 25 not moved.

Amendment 26 moved—[Humza Yousaf]—and agreed to.

Amendment 27 not moved.

Amendment 28 moved—[Humza Yousaf]—and agreed to.

Amendment 29 not moved.

Amendment 30 moved—[Humza Yousaf]—and agreed to.

Amendment 31 not moved.

Amendment 32 moved—[Humza Yousaf]—and agreed to.

Amendment 33 not moved.

Amendment 34 moved—[Humza Yousaf]—and agreed to.

Amendment 145 moved—[Humza Yousaf]—and agreed to.

Section 5—Requirement with licence conditions

Amendments 35, 37, 39, 41, 43, 45, 47 and 49 moved—[Humza Yousaf]—and agreed to.

Section 6—Particular rules regarding conditions

Amendment 51 not moved.

Amendments 52, 53 and 55 moved—[Humza Yousaf]—and agreed to.

Section 7—List of the relevant conditions

Amendment 57 not moved.

Amendments 58 and 60 moved—[Humza Yousaf]—and agreed to.

The Presiding Officer

Group 3 is on public authorities’ duties to co-operate and prepare in relation to a prisoner’s release. Amendment 61, in the name of the cabinet secretary, is grouped with amendment 2.

Humza Yousaf (Scottish National Party, Glasgow Pollok)

Although we supported the principle behind the original amendment on information sharing that was lodged by Daniel Johnson at stage 2, we opposed it at stage 2 on the grounds that it was unnecessary

and that it created challenges. Nevertheless, the amendment was agreed to and inserted section 7A. The concerns that we raised about the amendment remain valid. Amendment 61 would remove section 7A, and amendment 126 proposes an alternative approach to information sharing.

Section 7A places an obligation on the Scottish ministers to

“request information relevant to the monitoring of that prisoner”

from specified bodies—the Scottish Courts and Tribunals Service, Police Scotland and the relevant local authority—and the specified bodies must provide the information that is requested within 28 days of the request. I will set out the practical issues with such an approach.

The duty to request information arises before the prisoner is released on home detention curfew, but the duty has the caveat that it need be complied with only “where reasonably practicable”. The Scottish ministers will therefore be able to release a prisoner on HDC without complying with the duty if they can show that it was not reasonably practicable to do so.

The Scottish ministers will be obliged to request information prior to releasing a prisoner on HDC but will be under no obligation to wait for the information to be provided before they release the prisoner.

There is no description of what

“information relevant to the monitoring”

means. The Scottish ministers will therefore have a wide power to request any information that is linked to the monitoring of prisoners on HDC.

Furthermore, there will be no ability on the part of a specified body to refuse a request, in part or in whole, and section 7A provides no definition of “relevant local authority” or any explanation of how the Scottish ministers are to determine which local authority is relevant to the prisoner.

As we noted at stage 2, information is already shared between the Scottish Courts and Tribunals Service, Police Scotland, local authorities and the Scottish Prison Service, and the information is used by the SPS in determining applications for HDC. Therefore, our starting position was that the amendment was unnecessary.

Section 7A might also disrupt the current arrangements. A requirement to request information in every case could place an unnecessary burden on the SPS, which might already have the necessary information or might not require further information. The timing of the request could interrupt the determination of HDC, given that the timeframe that is set out in section 7A allows 28 days for the information to be provided if a request is made. That could slow down the determination and shorten the period that is available for HDC.

However, we are sympathetic to the intention behind section 7A. Amendment 126 will replace section 7A with provisions for a related but alternative approach, which amends section 1 of the Management of Offenders etc (Scotland) Act 2005. That section places a duty on the Scottish ministers and local authorities

“to co-operate with one another in carrying out their respective functions”

in relation to two groups of individuals. The first group is people who are supervised by, advised by or guided by a local authority as part of a service that is provided under

“sections 27(1) or (1A) or 27ZA of the Social Work (Scotland) Act 1968.”

That includes people who are released from prison on licence and people who are supervised under a community sentence. The second group is people who are detained in custody.

The duty to co-operate expressly includes the sharing of information. Amendment 126 will retain the intention behind section 7A while avoiding the difficulties with that section, which I have described.

On amendment 2, in the name of Daniel Johnson, access to suitable accommodation is important in supporting individuals who leave prison to reintegrate successfully and, therefore, in reducing the risk of reoffending. However, amendment 2 does not offer a proportionate or effective means of achieving that aim. It risks losing the current flexibility, which allows support to be tailored to the needs of the individual.

The Scottish Government supports a range of interventions that support prison leavers to reintegrate into the community. Those include measures to support prison leavers to access accommodation on liberation, such as the sustainable housing on release for everyone—SHORE—standards, which set out good practice on how the SPS and local government housing authorities can ensure that the housing needs of individuals in prison are met.

It is important to note that local authorities have statutory duties to address the needs of individuals who present as homeless and to provide information, support and services to individuals who are at risk of homelessness. Therefore, I am not persuaded that there is a need to legislate to require the Scottish ministers to take separate action to achieve the same aim. The duplication of existing duties and activities would be inefficient and disruptive, and it would create confusion about the responsibility for housing individuals who leave prison.

Instead, we should focus on making the existing processes as effective as possible. The Scottish Government will look at wider legislation and statutory guidance to ensure that everyone who faces homelessness is able to exercise their right and gain access to appropriate support. That work cannot take place in the context of the justice system alone, and the bill is not the right place to make such substantial changes to housing provision. Therefore, I ask Mr Johnson not to move amendment 2. If he does, I ask the Parliament to reject it.

On amendment 128, I welcome Daniel Johnson’s effort to encourage us to think about how the justice system could operate differently. His amendment seeks to add a new element to HDC by requiring that

“Scottish Ministers take steps to ensure that a person subject to a curfew condition is provided with meaningful activity whilst subject to the curfew condition.”

I am not convinced that legislation is required to support people on home detention curfew, which provides an opportunity to support effective reintegration by enabling part of a prisoner’s sentence to be served in the community, subject to licence conditions and electronic monitoring. That option can currently be provided alongside other services to support individuals who are leaving short-term sentences, including pre-release planning, voluntary social work throughcare, the SPS’s throughcare support service and third sector offender mentoring services.

Although Daniel Johnson’s amendment is well intentioned, I believe that it could create significant restrictions on how the HDC system operates. The definition of “meaningful activity” is to be prescribed by Scottish ministers via subordinate legislation

“but must include ... work or volunteering opportunities”.

However, not every individual on HDC would be able—or, indeed, willing—to engage with those work or volunteering opportunities. It is not clear whether those individuals would be restricted from accessing HDC because no meaningful activity could be provided for them.

Ministers do not control the employment market and could not ensure that work was available for everyone on HDC, so the Scottish ministers could never comply with that duty. In any event, if ministers prescribe work or volunteering opportunities for people, that could cut across other work or family commitments that they may have. Such a system would not provide the flexibility that is needed to take account of the specific circumstances of the individual.

I agree that, ultimately, we can do more to ensure that people who are released from prison are able to connect with public services and are given opportunities. However, I disagree with an approach that seeks to set a broad and mandatory set of activities instead of allowing actions to be determined voluntarily. For those reasons, I propose to resist amendment 128.

I move amendment 61.

Daniel Johnson (Labour, Edinburgh Southern)

I rise to speak to amendments 2 and 128. Before I do that, I will address the cabinet secretary’s comments on amendments 61 and 126.

I saw with some regret that the Government had lodged amendment 61, because I believe that a clear recommendation from Her Majesty’s inspectorate of constabulary in Scotland and Her Majesty’s inspectorate of prisons for Scotland was the need to improve information sharing between agencies. That was found by those bodies to be one of the critical issues around the tragic death of Craig McClelland. I recognise that amendment 126 would insert an alternative, but I do not believe that it would be as robust as a legal requirement to share information. That would be much more robust. However, if amendment 61 is agreed to, members should support amendment 126.

With regard to amendments 2 and 128, the justice system has a duty to protect the public, and it should aim for what I believe is the best way to do that: promoting reform and preventing reoffending. All too often, as the system stands, we simply return people to the circumstances in which they found themselves, which led to their offending in the first place. Amendments 2 and 128 seek to change that, and the amendments that I lodged at stage 2 regarding access to a general practitioner, an address and other measures also sought to rectify that situation.

I understand that it may be difficult and costly, but those things are vital because they are not happening. There may be standards in place, but I do not believe that a legal duty currently exists. The SHORE—sustainable housing on release for everyone—standards do not have a statutory footing. Wales has legislated for such a duty, and I simply ask the question: if it is good enough for Wales, why is it not good enough for Scotland?

As for meaningful activity, I fundamentally believe that the best way to prevent reoffending is by finding people meaningful work. That may be difficult, and I know that the Scottish Government does not control the employment market, but, if people are being released from prison, albeit on HDC, something must surely be found for them to do if we are to ensure that they do not reoffend. For those reasons, I will move amendments 2 and 128.

Graham Simpson (Conservative, Central Scotland)

I speak in my capacity as convener of the Delegated Powers and Law Reform Committee, so I will not make any comment on the policy implications of section 7A or the cabinet secretary’s amendment 61, which seeks to remove it from the bill.

At its meeting this morning, the DPLR Committee scrutinised the recently lodged supplementary delegated powers memorandum. Unfortunately, the lodging of the supplementary DPM breached the timeframe that is required by standing orders, which meant that this morning’s meeting was our only chance to consider it. The committee was disappointed about the lack of time that it had to scrutinise effectively the changes that stem from stage 2, as a result of which we were clearly limited in what we were able to recommend to Parliament. The committee acknowledges that the past few months have been a busy legislative period for all of us, and we appreciate that oversights happen, but that should not have happened.

However, our report has now been published. In it, we make a number of recommendations on the supplementary delegated powers, one of which relates to section 7A. The committee agreed that I should highlight those concerns now, given that members will not have had a chance to read the report.

The committee noted that the delegated power in section 7A

“is particularly wide in its scope”

and that, in that respect, it contrasts with powers in other sections of the bill. The committee also observed that the obligation to request information that is relevant to monitoring a prisoner

“is potentially very wide ranging”

and that

“There will be data protection implications involved in sharing such information about the prisoner.”

Therefore, the committee considers that affirmative, rather than negative, procedure would have been more appropriate for a power of such a nature. That might, of course, be a moot point if section 7A is removed from the bill.

I commend the DPLR Committee’s report to Parliament.

John Finnie (Green, Highlands and Islands)

I am content with the provisions of section 7A, which was inserted in the bill at stage 2, so we will not support the cabinet secretary’s amendment 61, which seeks to remove section 7A.

Sadly, I will not support my colleague Daniel Johnson’s amendment 128, even though it is entirely well meaning. I think that there are a number of challenges connected with it. In any case, the provision of “meaningful activity” should be part of a robust discharge plan, for want of a better term. As the cabinet secretary outlined, there are practical issues around that.

However, we will support Daniel Johnson’s amendment 2. The cabinet secretary talked about statutory duties and good practice—indeed, he promised us wider legislation and statutory guidance—but he will know that everything that we have heard is about the accommodation challenge that people face when they are discharged. That remains an issue, which amendment 2 would go some way towards addressing. It would provide focus; perhaps that is the focus that the cabinet secretary is saying will come with the wider legislation or the statutory guidance that is—if I heard him correctly—intended.

The system is not working, at the moment. We need more robust provision of accommodation. Therefore, we will support Daniel Johnson’s amendment 2.

Liam Kerr (Conservative, North East Scotland)

I wish to speak in support of Daniel Johnson’s amendments 2 and 128. It seems to me that one of the points of the bill is to help with rehabilitation. I listened to Daniel Johnson’s and John Finnie’s comments, and I think that the proposed measures would have merit. Thus, we will support amendments 2 and 128.

Liam McArthur (Liberal Democrat, Orkney Islands)

I share Daniel Johnson’s curiosity about why the Government is seeking to remove section 7A, not least because—as I recall—its insertion was supported unanimously by the committee at stage 2. I would have thought that, if the Government was so concerned about what the committee unanimously agreed to at stage 2, there would have been some engagement between stage 2 and stage 3.

Like John Finnie, I think that, in relation to amendments 2 and 128, Daniel Johnson made some very valid points about the key role that gainful activity and housing play in the process of rehabilitation and reintegration. The concern that I have—which I had at stage 2—is that the proposal is framed such that the implication is that, where such provision is not in place, the individual will remain in prison, which cannot be in their best interests. Therefore, although we accept the principle that underlies amendments 2 and 128, we will, regretfully, not be able to support them.

Fulton MacGregor (Scottish National Party, Coatbridge and Chryston)

I lend my support to the cabinet secretary’s amendments 61 and 126.

However, I will speak briefly against Daniel Johnson’s amendments 2 and 128.

As Liam McArthur does, I think that there are positive intentions behind them, but the bill is the wrong place for them. A lot of work has already been done on the subject, as we heard in evidence to the Justice Committee. There is good work on housing and employment, and as Daniel Johnson discussed at stage 2, around health. Those issues are best left to local service providers that do the job every day, rather than to MSPs and politicians. We need to move away from centralising such matters.

John Finnie (Green, Highlands and Islands)

Will the member take an intervention?

Fulton MacGregor (Scottish National Party, Coatbridge and Chryston)

I was just finishing my speech, but I will take the intervention.

John Finnie (Green, Highlands and Islands)

I am grateful to the member for taking an intervention on that point.

If someone comes from location A, was arrested in location B and plans to relocate to location C, who would be their local housing service provider? The statutory obligation rests with the local authority; which local authority would it be?

Fulton MacGregor (Scottish National Party, Coatbridge and Chryston)

In that hypothetical situation, my understanding is that the obligation would rest with the local authority that the person came from, unless, while they were in custody, arrangements were made for them to move elsewhere. That makes exactly my point: such arrangements are made every day and services are in place to do that.

As I said earlier, the intentions behind amendments

2 and 128

are positive. I have spoken to Daniel Johnson in committee about them and I know that they are based on a positive intention. However, I do not think that the bill is the right place for them: I do not think that we should be centralising in that fashion. I will not support amendments

2 and 128.

Humza Yousaf (Scottish National Party, Glasgow Pollok)

I have heard what committee members have had to say. I, too, say that the bill is the wrong place for amendments

2 and 128. I understand why Daniel Johnson has lodged them, but I hope that amendment 61 is an improvement on what was passed at the committee.

I say to Graham Simpson, who was speaking on behalf of the Delegated Powers and Law Reform Committee, that I am pleased that the committee welcomes the fact that the bill was amended at stage 2 to apply the affirmative procedure to regulations that will be made under section 9(1), in accordance with the committee’s recommendation. I am also pleased to note that the committee reports that it is content with the delegated powers provision, as set out in relation to excluded sentences and approved devices.

Of course, Graham Simpson is right to record the lack of time that the committee had. I apologise to the committee for the inadvertent breach of standing orders and for constraining the time that it had to consider the supplementary delegated powers memorandum. It was delayed as a result of an administrative oversight. I am happy to put on the record my apologies to the committee for that lack of time.

I press amendment 61.

The Presiding Officer

The question is, that amendment 61 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 58, Against 55, Abstentions 0.

Amendment 61 agreed to.

Does Liam Kerr intend to move amendments 62, 64, 67, 69, 70A, 71, 72A, 73, 76, 77A, 78, 80, 82, 83A, 84, 86, 88, 90, 91A, 93, 95, 97, 99, 101 and 103?

Liam Kerr (Conservative, North East Scotland)

No.

Amendment 62 not moved.

The Presiding Officer

I ask the cabinet secretary to move amendments 63, 65, 66, 68, 70, 72, 74, 75, 77, 79, 81, 83, 85, 87, 89, 91, 92, 94, 96, 98, 100 and 102.

Amendment 63 moved—[Humza Yousaf]—and agreed to.

Amendment 64 not moved.

Amendments 65 and 66 moved—[Humza Yousaf]—and agreed to.

Section 9—Use of devices and information

Amendment 67 not moved.

Amendment 68 moved—[Humza Yousaf]—and agreed to.

Amendment 69 not moved.

Amendment 70 moved—[Humza Yousaf].

Amendment 70A not moved.

Amendment 70 agreed to.

Amendment 71 not moved.

Amendment 72 moved—[Humza Yousaf].

Amendment 72A not moved.

Amendment 72 agreed to.

Section 10—Arrangements for monitoring system

Amendment 73 not moved.

Amendment 74 moved—[Humza Yousaf]—and agreed to.

Section 11—Designation of person to do monitoring

Amendment 75 moved—[Humza Yousaf]—and agreed to.

Amendment 77 moved—[Humza Yousaf].

Amendment 77A not moved.

Amendment 77 agreed to.

Amendments 79 and 81 moved—[Humza Yousaf]—and agreed to.

Amendment 83 moved—[Humza Yousaf].

Amendment 83A not moved.

Amendment 83 agreed to.

Amendments 85, 87 and 89 moved—[Humza Yousaf]—and agreed to.

Amendment 91 moved—[Humza Yousaf].

Amendment 91A not moved.

Amendment 91 agreed to.

Section 12—Standard obligations put on offenders

Amendments 92, 94, 96, 98, 100 and 102 moved—[Humza Yousaf]—and agreed to.

The Presiding Officer

Group 4 is on persons subject to part 1 monitoring: consequences of breach or deemed breach of disposal or condition. Amendment 104, in the name of the cabinet secretary, is grouped with amendments 105, 146 and 130.

Humza Yousaf (Scottish National Party, Glasgow Pollok)

Amendment 104 will remove the power of arrest in section 12(3A), which was voted on at stage 2. That provision enables a constable to arrest an individual if they have reasonable grounds to suspect that that individual has contravened the requirement to wear and refrain from damaging the electronic tag. The implication is that that arrest may be effected without a warrant.

The police already have powers to arrest an individual who is suspected of having committed an offence, but a breach of the electronic monitoring requirements by an individual who is serving a community sentence or subject to licence conditions is not an offence in itself. The power of arrest would not therefore apply when an individual cut off their tag. The unlawfully at large offence that we created at stage 2 would, of course, enable the police to arrest an individual if they had cut off their tag and failed to return to custody following recall. People who are unlawfully at large can be arrested without a warrant.

It is not clear from the powers of arrest in section 12(3A) what a constable is to do with an individual who is suspected of having breached an electronic monitoring requirement. An individual on licence is liable to be returned to prison only if the licence is revoked. Therefore, a constable who arrests an individual only on suspicion that they may have breached their licence could not return that individual to prison. An individual who is serving a community sentence is liable to be brought before the court only if the breach procedures for that community sentence have been invoked. A constable who arrests an individual only on suspicion that they have breached their community sentence could not return that individual to prison or take them to court. There are existing powers for the police, the Scottish ministers and the courts to deal with an individual if they have breached the terms of the licence or community sentence. People on licence can be recalled to prison and people who are serving a community sentence can be fined or sentenced afresh—even to imprisonment, of course.

A further point to note is that Mr Kerr’s amendment 105 also uses the word “offender”. At stage 2, the Justice Committee took great pains to ensure that that word was omitted from the bill, as we have confirmed in relation to previous amendments this afternoon.

It is clear that the power of arrest in section 12(3A) is unnecessary and that the creation of a specific statutory power of arrest is a departure from the use of a general power of arrest if an offence has been committed, as agreed by the Parliament in 2016. Police Scotland has also expressed its concerns to us about the limitations on how that power could be used. The creation of a power to arrest an individual without a warrant in the absence of a criminal offence being suspected or committed and without a duty on the individual to return to prison would be confusing and could even potentially represent a breach of article 5 of the European convention on human rights.

Amendments 105 and 130 would create the offence of cutting off a tag. My first reason for urging members to reject amendment 105 is because a near-identical form of the amendment was rejected at stage 2, and my arguments against that amendment continue to apply. Indeed, the only change to the earlier amendment is the provision of a limited form of statutory defence.

Secondly, the new unlawfully at large offence ensures that those who cut off their tag and abscond will be committing an offence. Making one specific part of the same course of behaviour a further offence is therefore not necessary.

Thirdly, the proposed offence of cutting off a tag carries a maximum sentence of 12 months’ imprisonment. There would be a presumption against imprisonment for the new offence. Under the proposal, the individual may therefore be more likely to receive a fine.

Fourthly, there are already sanctions for those who cut off an electronic tag or otherwise breach the conditions of a licence or community sentence. The individual can be recalled to prison or, indeed, returned to court, to face further punishment for the breach.

Fifthly, the creation of an offence of cutting off a tag could result in an individual who is serving a community sentence being fined for breaching the community sentence and for cutting off their tag. That would mean two separate financial punishments being imposed on an individual for the same course of conduct. In contrast, the unlawfully at large offence would not apply to community sentences, thereby avoiding the risk of double punishment.

The defence that amendment 105 provides would not protect an individual whose tag is damaged accidentally or removed forcefully by a third party. A defence of reasonable excuse would be required to ensure that an individual was not convicted of an offence for conduct over which they had no control. The proposed offence would elevate the electronic monitoring requirement above all other conditions in the licence or community sentence, even if those other conditions were more important in protecting the public. For example, an individual who stayed in the house and cut off the tag would be committing an offence, whereas an individual who breached a condition not to go near a primary school would not.

Amendment 130, in the name of Daniel Johnson, is similar in nature to amendment 105, so the same arguments apply. Although the defence that is proposed in amendment 130 is framed differently, it attracts the same criticism as the defence for which amendment 105 provides. An individual who accidentally damaged their tag, or whose tag was forcefully removed against their will, would not be afforded a defence under that amendment.

An additional difficulty with amendment 130 is that there is no specific punishment for the offence. While amendment 105 specifies the maximum punishment on summary conviction for the cutting off of a tag, there is no punishment specified at all in amendment 130. It is not clear whether the offence that would be created by amendment 105 could be tried only summarily or in solemn proceedings as well. I urge members to vote to reject those two amendments.

Margaret Mitchell’s amendment 146 is broadly similar to the amendment that she lodged at stage 2, which was rejected. The reasons for rejecting the amendment remain the same. The only change to the wording is the addition of qualifying language that states that, when there is a suspected breach, the designated person

“must notify such bodies mentioned in subsection (3) as they consider appropriate.”

The amendment would place an obligation on the designated person—currently, G4S—to report every suspected breach of a community sentence or licence condition to the police, as there are currently no other bodies specified in subsection (3).

The breach would also require to be reported whether or not the designated person considered that it should be addressed by the police. The duty to report a suspected breach would apply irrespective of whether the individual required to be recalled to prison under the terms of their licence or whether any enforcement action was to be taken. For example, an individual who is five minutes late for their home detention curfew would require to be reported to the police, even though the police would not act on that information unless the individual had been recalled, which in most instances one would suspect would not be the case.

The drafting of amendment 146 means that the provision would apply where the individual was suspected of having breached a section 3 disposal or a section 7 licence condition. There is no reference to an electronic monitoring requirement, so it would capture any breach of a disposal or licence listed in sections 3 or 7, even where no electronic monitoring requirement was imposed.

Finally, the obligation to inform is also confusing, as it specifies two different timescales for compliance. The first is “Immediately” after the suspicion arises and the second is

“or as soon as is reasonably practicable”.

For all those reasons, I ask members to reject amendment 146.

I move amendment 104.

Liam Kerr (Conservative, North East Scotland)

Parliament will be well sighted on amendment 105 and the reasons for it, and it is imperative, in my view, that Parliament has its say. Members will be aware that, under the bill as amended at stage 2, offenders who were out on a tag could cut off their tag and would not be considered to have committed a criminal offence. I find that extraordinary. There should be an immediate power of arrest, and amendment 105 would provide that.

The reality of the increase in the use of tagging means that someone would be in prison but for the tag that they are wearing. We must surely, therefore, treat the removal of a tag as seriously as if the person had breached the prison wall.

Parliament will be reassured to note that Scottish Women’s Aid made clear to the committee in its stage 1 evidence that a criminal offence in such circumstances is needed if there is to be a credible deterrent. Victim Support Scotland, Community Justice Scotland and Positive Prisons? Positive Futures called for robust responses to breaches of monitoring conditions.

Again, the committee rightly raised objections at stage 2 and, no doubt, Parliament would wish to hear them answered. Fulton MacGregor was uncomfortable that such an offence seemed to be punitive. I can only respond that of course it is punitive, because the offender has done something that is akin to breaching the prison wall.

The cabinet secretary was concerned that someone might need to remove a tag for medical reasons and would then be further criminalised as a result. I was not convinced that that would happen, and I remain unconvinced. I do not foresee some sort of strict liability around the provision, but I see the need for reassurance, which is why I have added the defence of removing the tag for medical reasons.

If the legislation is going to increase the number of offenders on tags, the appropriate protections must be in place. That means making it a criminal offence to tamper with or damage a tag, and I seek Parliament’s support for amendment 105.

For similar reasons, we will support Daniel Johnson’s amendment 130 if he chooses to move it, and we will oppose amendment 104, which seeks to remove what was a sensible amendment at stage 2 that aimed to ensure that the police have powers of arrest when an offender has cut off their tag. The stage 2 amendment was lodged in response to evidence that the committee heard from the police that there are legal grey areas around their powers to apprehend, and the provision is now in black and white in the bill.

Margaret Mitchell (Conservative, Central Scotland)

Police officers do not monitor or control the conditions that are attached to electronic monitoring. When a breach of those conditions occurs, such as when the offender enters an excluded area or tampers with or removes their tag, the police officers’ response is reactive.

That has raised concerns at Scottish Women’s Aid, Victim Support Scotland and Community Justice Scotland that the response time to react to a breach is too long.

Amendment 146 therefore seeks to ensure that, when there is a suspected breach of a disposal or conditions, the relevant bodies are contacted immediately, or as soon as possible. The relevant bodies are listed as:

“(a) the Police Service of Scotland”

and

“(b) such other body as the Scottish Ministers may by regulations specify.”

As the cabinet secretary said, amendment 146 is similar to one that I lodged at stage 2, but it has been revised to take account of the concerns that the cabinet secretary raised at stage 2 about minor breaches being escalated to the police. The amendment now provides for discretion and a proportionate response to any breach by stipulating:

“Immediately or as soon as is reasonably practicable after a suspected breach mentioned in subsection (1) has occurred, a person designated under section 11(1) must notify such bodies mentioned in subsection (3) as they consider appropriate.”

In other words, the amendment allows the designated person to use their judgment about whether they consider that the breach is one that must be responded to immediately by, for example, Police Scotland. As domestic abuse would possibly be covered by conditions, a breach could result in a victim being put in immediate danger, so I hope that the cabinet secretary will support amendment 146. Crucially, it removes the potential for minor breaches—as a result of a technical error, for example—to be escalated to the police, but it provides added protection for victims of domestic abuse.

Amendment 146 also gives clarity to the procedure to be followed, which is why the Law Society of Scotland supports it.

Daniel Johnson (Labour, Edinburgh Southern)

I believe that it is important that we make cutting off a tag an offence for the following reasons. First, when we look at the circumstances of Craig McClelland’s death, it is clear that a significant number of people were unlawfully at large who had realised that they could cut off their tags and that that, in and of itself, did not constitute an offence and that they had a good chance of escaping detection. That needs to be corrected.

More important, if we decide that someone has committed an offence that requires us to deprive them of their liberty, and they tamper with the means by which we are restricting or removing their liberty, that is extremely serious, so I believe that doing so should be an offence. If we cannot monitor their whereabouts or whether they are abiding by the restriction of liberty, that must be considered an offence and should be treated as such.

It is not about elevating the electronic monitoring requirement above other conditions; it is about recognising that the tag is the primary measure that we will be using to deprive people of their liberty in such circumstances.

Humza Yousaf (Scottish National Party, Glasgow Pollok)

On the tragic case that Daniel Johnson mentioned, I know that the thoughts of everybody in the chamber will be with the McClelland family. Does Daniel Johnson recognise that we are introducing an offence of being “unlawfully at large”, which, in that case, would have meant that James Wright would have been arrested? Therefore, I am not sure that the case is a justification for making cutting off a tag an offence.

Daniel Johnson (Labour, Edinburgh Southern)

The cabinet secretary is right; I welcome the new offence. It is an important step forward and it would correct many of the issues. However, as Liam Kerr put it, when someone goes over the prison wall, we do not wait for them to rob a bank before we arrest them. We arrest them once they have gone over the wall. If someone cuts off their tag, we should not wait—their doing so should, in itself, be a ground for arresting that person.

Fulton MacGregor (Scottish National Party, Coatbridge and Chryston)

I want to speak briefly, because Liam Kerr mentioned me in his remarks. For the record, I did not say that the offence would be regarded as punitive; I said that it could be regarded as overly punitive, because the individual circumstances would not be taken into account. There was a wee bit of a play on words there, which I think the

Official Report

will show.

Of course the breach of an electronic monitor needs to be taken seriously and dealt with robustly—nobody in the chamber would disagree. However, we need to get the balance and the measure right—that is why the provisions of the bill are the right way to deal with the issue, and we should not play simple politics with it.

The Presiding Officer

I call the cabinet secretary to wind up on this group.

Humza Yousaf (Scottish National Party, Glasgow Pollok)

I have no further comments.

The Presiding Officer

The question is, that amendment 104 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 68, Against 45, Abstentions 0.

Amendment 104 agreed to.

Amendment 105 moved—[Liam Kerr].

The question is, that amendment 105 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 45, Against 68, Abstentions 0.

Amendment 105 disagreed to.

Amendment 106 moved—[Humza Yousaf].

Amendment 106A not moved.

Amendment 106 agreed to.

Section 13—Deemed breach of disposal or conditions

Amendments 107 and 109 moved—[Humza Yousaf]—and agreed to.

After section 13

Amendment 146 moved—[Margaret Mitchell].

The Presiding Officer

The question is, that amendment 146 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

The result of the division is: For 44, Against 69, Abstentions 0.

Amendment 146 disagreed to.

Does Liam Kerr intend to move amendments 111A, 112, 113A, 114, 115A, 116, 118 and 120?

Liam Kerr (Conservative, North East Scotland)

No.

The Presiding Officer

Thank you. I invite the cabinet secretary to move amendments 111, 113, 115, 117 and 119.

Amendment 111 moved—[Humza Yousaf].

Amendment 111A not moved.

Amendment 111 agreed to.

Amendment 113 moved—[Humza Yousaf].

Amendment 113A not moved.

Amendment 113 agreed to.

Amendment 115 moved—[Humza Yousaf].

Amendment 115A not moved.

Amendment 115 agreed to.

Section 16—Additional and consequential provisions

Amendments 117 and 119 moved—[Humza Yousaf]—and agreed to.

The Presiding Officer

Group 5 is on the enforcement of fines and so on. Amendment 121, in the name of Lewis Macdonald, is the only amendment in the group.

Lewis Macdonald (Labour, North East Scotland)

The purpose of my amendment is to address an anomaly in the law that was first raised with me by my constituent Michelle Gavin almost three years ago.

An intruder broke Michelle Gavin’s fence while trying to avoid a police officer. Rather than take him to court, the procurator fiscal offered the intruder a fiscal fine—a compensation order requiring him to pay the householder £400 to fix her fence.

When I raised that case during stage 2 consideration in April, the money paid to my constituent amounted to £7.50. Thanks to the spotlight of parliamentary scrutiny, that has now risen to £15. That means that £385 remains outstanding three years after the damage took place. By any standard, the law has failed that victim, just as it has many thousands of others. That is why change is required.

Michelle Gavin has received only a fraction of the compensation owed to her, in part because the perpetrator is under no legal obligation to provide information on his income, savings or benefits, or any other relevant information that would help to ensure that he paid the fiscal fine. It is far harder for the courts to enforce such an order. That is why my amendment proposes to make completing a declaration of income form, which is relevant in this case, mandatory.

When I moved a similar amendment at stage 2, members suggested that it should make provision for reasonable excuse and specify a time limit for completing the form. I have addressed those points in the revised amendment.

Perhaps more importantly, the cabinet secretary said at stage 2 that he would rather not rely on declaration of income forms since the necessary information could be obtained direct from United Kingdom Government departments. I am very open to that approach. The Digital Economy Act 2017 contains provisions to allow the courts to obtain information about benefits and earnings directly from Department for Work and Pensions and HM Revenue and Customs databases, but that requires the Scottish ministers to introduce the necessary regulations to allow the Scottish Courts and Tribunals Service to put the appropriate arrangements in place.

I return to the issue in order to discover from the cabinet secretary whether such regulations have been drafted and, if so, when he expects them to be laid. I also ask whether those regulations will ensure that data sharing will apply to fines that have not yet been paid, as well as to new cases decided after the regulations are passed.

Michelle Gavin has already waited far too long. My purpose is to ensure that her case can be revisited by the Scottish Courts and Tribunals Service, using new powers to obtain information so that she can get the money to which she is entitled, whether those powers come from this amendment or from Government regulations on sharing data. I look forward to the cabinet secretary’s contribution.

I move amendment 121.

Humza Yousaf (Scottish National Party, Glasgow Pollok)

As at stage 2, when an almost identical amendment was voted down, I welcome Lewis Macdonald’s interest in improving fines enforcement. The commitment of all parties to that important work is welcome, and I appreciate the fact that he is acting on behalf of a constituent in his region.

Fines collection rates in Scotland are high, and I welcome the continuing efforts that the

Scottish Courts and Tribunals Service

puts into enforcement. Recent statistics show that 90 per cent of the value of sheriff court and justice of the peace court fines imposed during the three-year period between 2015-16 and 2017-18 had either been paid or was on track to be paid. I accept that the remainder is a hard nut to crack, and I appreciate that that is exactly what amendment 121 is aimed at addressing. However, amendment 121 is not the best way of going about that. Despite some changes that Mr Macdonald has made to the amendment since stage 2, it remains somewhat flawed. Among other issues, failure to obey a court order is a contempt of court, and the penalties for contempt of court are set out in the Contempt of Court Act 1981. It depends on the court, but in all cases the penalties exceed the £1,000 set by amendment 121 and include the possibility of imprisonment. The offence that Mr Macdonald seeks to create does not even match the existing deterrent. There is no justification for creating a new criminal offence for conduct that can be already be dealt with by a court.

There are other technicalities that I can go into if necessary. More fundamentally, though, from a policy point of view, I am concerned, as I mentioned at stage 2, about the circularity of creating a new offence attaching a penalty of a fine in precisely those cases where the individuals concerned had already demonstrated their failure to engage with fine enforcement officers. I note that the offence appears to be little used in England and Wales, which suggests that there is little point in creating one up here.

There is a better way of dealing with this. Lewis Macdonald asked for an update from the Government about regulations. He is right—we want the Scottish Courts and Tribunals Service to obtain relevant information about a person’s income directly from the Department for Work and Pensions and HM Revenue and Customs. I can confirm to Lewis Macdonald that before the end of the year we will put draft regulations before the Parliament to enable that to happen. What that means is that instead of asking the defaulting individual for information about income and benefits, the fine enforcement officers would be able to obtain that information directly from the DWP and HMRC. That would be a far more effective way of dealing with people who have already proved themselves reluctant to engage with the court service. It does not create a circular offence.

In summary, despite some of the changes to amendment 121 since stage 2—

Lewis Macdonald (Labour, North East Scotland)

I welcome the cabinet secretary’s commitment on timescale. Can he confirm that the regulations, when agreed to, will permit the

Scottish Courts and Tribunals Service

to pursue defaulters for fines that have previously been imposed but have not yet been paid?

Humza Yousaf (Scottish National Party, Glasgow Pollok)

I do not know whether we have the ability to be retrospective. If the member will forgive me, I cannot say that until we draft the regulations and have come to a determination following our own legal advice and after speaking to the DWP and HMRC.

I recognise that it is an important matter, particularly because Mr Macdonald’s constituent has been waiting for three years for the fine to be paid. When we return from recess and when we are drafting those regulations, perhaps I can meet Mr Macdonald to assure him that we will do everything possible to help people such as his constituent and many others who may well be in that situation to have those fines paid. I will endeavour to involve him in some of the conversations around the drafting of the regulations.

For all the reasons that I have outlined, I hope that Mr Macdonald will not press amendment 121 but, if he does so, I ask members to reject it.

Lewis Macdonald (Labour, North East Scotland)

I welcome the commitment that the cabinet secretary has made in relation to timing and his offer of a meeting to ensure that the changes that go through Parliament will assist in the case of Michelle Gavin and the many other cases that are no doubt outstanding.

I look forward to that discussion with him soon after the summer recess. On that basis, I seek to withdraw amendment 121.

Amendment 121, by agreement, withdrawn.

The Presiding Officer

Group 6 is a group of minor and technical amendments. Amendment 122, in the name of the cabinet secretary, is grouped with amendments 123, 131, 132 to 137 and 143.

Humza Yousaf (Scottish National Party, Glasgow Pollok)

The amendments in this group are all minor or technical amendments to tidy up the bill. I do not think that there is anything controversial among them, so I will not keep members back by saying too much about them.

Amendments 122, 123, 133 and 136 ensure that the Prisoners and Criminal Proceedings (Scotland) Act 1993 is referred to consistently throughout the bill with the label “the 1993 Act”. Amendments 131 and 132 adjust some language in section 43C that was added at stage 2 so that it is consistent with the language that is normally used in provisions of this type. Amendment 143 corrects a typo where the word “Act” appears once too often.

The other amendments in the group move sections around to improve the accessibility of the legislation. Everything that is about the Parole Board for Scotland as an institution will sit in part 3 and all the substantive provisions about prisoners will sit in a new part after part 3.

I move amendment 122.

Amendment 122 agreed to.

The Presiding Officer

Group 7 is on the independence of the Parole Board for Scotland. Amendment 1, in the name of Daniel Johnson, is the only amendment in the group.

Daniel Johnson (Labour, Edinburgh Southern)

I am mindful of two key points. The first is the correspondence that I have had from the cabinet secretary, for which I thank him. The second is my understanding that the Government intends to introduce legislation on the Parole Board. I will bear that in mind in what I say. I do not intend to speak for long.

The Parole Board does particularly important work in determining whether individuals continue to pose risk to public safety and whether they should be released from prison. It is therefore critical that the board’s work is carried out independently. That work is not always easy and it requires fine and balanced judgments, and therefore its independence is important. The independence of the judiciary, which is set out in statute and which we all have a duty to uphold, should be mirrored for the Parole Board. However, I recognise that there may well be technical issues with the amendment, and I will listen to what the cabinet secretary has to say on it.

I move amendment 1.

Humza Yousaf (Scottish National Party, Glasgow Pollok)

I thank Daniel Johnson for his amendment and for the constructive conversation that we have had at the various stages of the bill. As Daniel Johnson rightly did, I put on record the fact that the Parole Board’s members do an incredibly difficult job, and they do it very well. It is a remarkably difficult job and one that has to be—and rightly is—free from political interference and indeed governmental interference. We should all unite in defending the independence of the Parole Board, and I am sure that we all do.

I sympathise with the purpose of amendment 1, but I consider that section 44 goes far enough in reinstating the independence of the Parole Board. As briefly as possible, I will touch on my concerns about amendment 1. The area that causes me the most concern relates to the Scottish ministers’ power to recall a person to custody for breach of their licence conditions. My view is that any such action to revoke a licence by the Scottish ministers would run contrary to the proposed amendment. It effectively involves the Scottish ministers revoking the person’s licence, as set by the Parole Board, and could be seen by some as interfering with the board’s independence.

I am sure that members will agree, where protection of the public demands it, it is appropriate that the Scottish Ministers can make a decision to revoke a licence without having to wait until the next time that the Parole Board will convene to consider the case. I am happy to expand on that or my other concerns. The reason why I am highlighting them is that I believe that the amendment may have unintended and potentially damaging consequences to the overall parole system.

I consider section 44 to be sufficient to restate the independence of the Parole Board. I therefore ask Daniel Johnson not to press amendment 1, and if he is otherwise minded, I urge other members to reject it.

The Presiding Officer

I invite Daniel Johnson to wind up and to press or withdraw amendment 1.

Daniel Johnson (Labour, Edinburgh Southern)

I heard what the cabinet secretary has to say and understand his reservations. If the Government brings forward legislation in the coming months and years, we need to consider the role of the Parole Board very carefully, in terms of its independence and the fact that, while in many respects it is a tribunal like other courts, it is not identical. Its important role needs careful consideration.

However, with the comments that the cabinet secretary has just made in mind, I will not press the amendment.

Amendment 1, by agreement, withdrawn.

Section 36—Mandatory categories of member

Amendment 123 moved—[Humza Yousaf]—and agreed to.

The Presiding Officer

Amendment 124, in the name of the cabinet secretary, is grouped with amendment 127.

Humza Yousaf (Scottish National Party, Glasgow Pollok)

Amendment 124 seeks to make a change to section 3AA of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in order to provide greater flexibility in the structure of HDC and to clarify its impact on the Parole Board’s assessment for parole.

The direct impact of the change will be minimal in terms of eligibility for HDC. However, in the context of a historically high prison population, the change is required so that ministers will have sufficient powers to configure HDC differently in the future, should they ever need to do so. I believe that it is a prudent step to take now, when there is an available legislative vehicle.

The amendment proposes a change in how the minimum length of time that is to be spent in custody before a person becomes eligible for HDC will be framed in legislation. Currently a prisoner can be eligible only after serving one quarter of their sentence or four weeks—whichever is greater. Subsection (2) will change that so that a prisoner will have to serve only one quarter of their sentence to be eligible for HDC. The Scottish ministers currently have the power, via subordinate legislation, to modify the requirement that a prisoner must serve a minimum of four weeks but not the requirement that a prisoner must serve an absolute minimum of one quarter of their sentence. Subsection (3) will enable the Scottish ministers to modify, via subordinate legislation, the minimum amount of time that must be served for HDC eligibility, should they ever need to do so.

If it were ever necessary to change the requirement that a minimum of 25 per cent of a sentence must be served before someone becomes eligible for HDC, any such proposal would come back to the Parliament for approval under subordinate legislation—which, importantly, would be subject to the affirmative procedure—instead of requiring future primary legislation. That pragmatic change will ensure consistency with the already broad range of powers that ministers have to modify the HDC regime via subordinate legislation.

The Scottish ministers have the power to modify the following aspects of the HDC regime via subordinate legislation: the minimum sentence that a short-term prisoner must be serving to be eligible for HDC, which is currently three months; the number of weeks that must be served before a short-term prisoner can be eligible for HDC; the number of days leading up to the halfway stage of a prisoner’s sentence during which HDC can be granted; and the statutory exclusions from HDC.

However, although the Scottish ministers have a power to modify the minimum number of weeks that must be served before a prisoner is eligible, which is currently four weeks, there is no power to modify the requirement that one quarter of the sentence must be served. The requirement that a prisoner must have served a requisite amount of a sentence before being eligible for HDC remains a barrier to flexibility in how the system can be configured.

Under the powers that are proposed, the Scottish ministers will be able to change the minimum time that must be served before a prisoner can be eligible for HDC, either by reference to a specific period of a prisoner’s sentence or by a specified period of time. The two-pronged approach of requiring either four weeks or a quarter of the sentence to be served will be replaced with the simple requirement that one quarter of a sentence be served. Ministers will retain the power to modify that requirement. I stress that we are not proposing to change the requirement that a prisoner must serve 25 per cent of their sentence. However, amendment 124 provides the flexibility for ministers—present or future—to work with the Parliament to act quickly if that is required.

I would have preferred to have had the opportunity to debate the change at committee stage—or, indeed, to have taken forward the approach through new legislation—but the prison population has continued to change over recent weeks, with numbers creeping steadily upwards. I must therefore act now and ask the Parliament to consider this option as a pragmatic future proofing of the available policy responses. We are, of course, exploring other measures in relation to operational capacity in the existing prison estate, and we are looking across the operation of the entire justice system in seeking to address the rising prison population. The change to HDC is relatively minor in nature, but the fact that it needs to be considered should give us all pause to reflect that we have the highest prison population per capita in western Europe—which is not a statistic to be proud of.

There has been positive collaboration on many parts of the bill to date, including through the support for electronic monitoring as an alternative to prison. I hope that the collaboration across parties will extend into future parliamentary sessions, because it is important that we continue to seek alternatives to incarceration across all our legislative and policy choices.

The final change that amendment 124 will make is to clarify that the legislation that underpins HDC does not require the Parole Board for Scotland to make a decision on parole by a specific date to enable a long-term prisoner to access HDC. Long-term prisoners are eligible for HDC only if they have been pre-approved for parole by the board at the halfway stage of their sentence. Amendment 124 clarifies that the window during which a long-term prisoner can be granted HDC is restricted by the timing of the board’s decision to recommend release on parole: the decision on parole will take precedence and will not be expedited to enable a long-term prisoner to spend a longer period on HDC.

Amendment 127 was lodged in response to an amendment that Margaret Mitchell lodged at stage 2, which proposed that statutory HDC guidance should be produced and laid before the Parliament. As I said at stage 2, I am sympathetic to the intent behind that amendment, and I am grateful to the convener, Daniel Johnson and Liam Kerr for working with us on an approach that I hope satisfies them and provides what they were looking for.

Amendment 127 sidesteps two areas of concern with the amendment that was considered at stage 2. It avoids including material that duplicates other provisions in the bill and it does not create a circular obligation on the Scottish ministers to have regard to their own guidance. We propose that ministers should be obliged to publish a statutory HDC operating protocol, which will include the following heads of information:

“(a) the process of risk assessment that is carried out before a prisoner is released on licence under section 3AA”—

of the Prisoners and Criminal Proceedings (Scotland) Act 1993—

“(b) the factors taken into account in carrying out such risk assessments,

(c) the procedures for monitoring a prisoner while released on licence under section 3AA,

(d) the process for investigating a suspected failure to comply with a condition included in a licence under section 3AA,”

and

“(e) the process by which a licence under section 3AA is revoked and a prisoner recalled to prison as a result”.

We included in amendment 127 a requirement for the police, the SCTS, local authorities, the Parole Board and the Risk Management Authority to be consulted in the preparation of the protocol. In addition, the protocol will require to be laid in the Parliament within six months of royal assent and will thereafter be kept under review.

The inclusion in the bill of the heads of information on risk assessment and factors to be taken into account in carrying out a risk assessment will, we hope, satisfy members and provide what they were looking for in relation to risk.

The heads of information that are set out in amendment 127 will ensure the publication of information about the entire HDC process, including the risk assessment prior to the granting of HDC, the monitoring of risk in the community and the revocation of HDC.

The requirement to lay the protocol before the Parliament will give the Parliament an opportunity to scrutinise the risk assessment procedures that are used for the purposes of HDC.

I urge members to support amendments 124 and 127, and I move amendment 124.

Margaret Mitchell (Conservative, Central Scotland)

I am grateful to the cabinet secretary for meeting me to discuss the need for stronger risk assessment before electronic monitoring is considered. As he says, at stage 2, I tried to push for robust risk assessment procedures and for details of the risk assessment tool to be shared with the Parliament before the bill was passed. I am pleased that our discussions have at least led the cabinet secretary to lodge a stage 3 amendment that will ensure that the details of how risk will be assessed will be consulted on and that a report will be produced for the Parliament within six months of royal assent if the bill is passed today. On that basis, I am happy to support amendment 127.

Daniel Johnson (Labour, Edinburgh Southern)

I express my support for amendment 127. It is a positive step forward. My only regret about it is that it does not contain a legal obligation for the guidance to be followed, which would make a substantive difference. I will cover that when we come to risk assessment, later in the debate.

I will express the three reasons for my concern about amendment 124. The first is the rationale. Although I completely agree with the cabinet secretary that we must make a concerted effort to reduce our prison population and that we must seek alternatives to incarceration, I worry that the proposed measure, in making that intention explicit and in having solely that aim, potentially risks the very intent that the cabinet secretary sets out. We will reduce the prison population by reducing offending, not simply by re-categorising people.

Secondly, I worry about the power that the cabinet secretary is giving to ministers in allowing them to alter the minimum threshold for HDC. I worry about whether that is appropriate, because I believe that we should be avoiding short prison sentences. On removing the threshold of four weeks, I wonder what the point of sending someone to prison for less than four weeks is. That is counterintuitive.

Fundamentally—and finally—Parliament has not been able to scrutinise the proposals, which is a matter of huge regret.

For those reasons, I do not believe that amendment 124 can be supported. It perhaps could have been supported if its provisions had been introduced earlier, but I do not believe that they can be supported when the amendment has been lodged at this late stage.

John Finnie (Green, Highlands and Islands)

The Scottish Greens will support both of the amendments in the group. They are a useful contribution to what has been a very detailed debate on the whole issue, particularly around the question of risk assessment. I wonder whether the cabinet secretary, in his summing up, can comment on the likely impact on the numbers. It was depressing to see the most recent figures for people being granted home detention, which showed a significant drop in their number—due, no doubt, to the risk aversion that was built into the system. I ask the cabinet secretary to comment on that. Nevertheless, he has our support for both of the amendments in the group.

Humza Yousaf (Scottish National Party, Glasgow Pollok)

I thank members for their contributions. I will focus on some of the questions that have been asked of me in relation to amendment 124. I reassure Daniel Johnson that the measures will be subject to the affirmative procedure. Therefore, Parliament will be able to scrutinise and debate any changes.

Let me put on record again—as I did in my opening remarks—that we are not proposing any change to the minimum time period; the aim is simply to allow ministers more flexibility.

On HDC, my belief is that, as John Finnie said, the pendulum has perhaps swung too far in the other direction in that the number of people who are coming out of prison on HDC is very low. A number of members have written to me, expressing their concerns on that very point. As John Finnie suggested, it is not a question of re-categorising people; it is about examining the HDC regime as a whole and seeing where sensible changes can be made, always with the protection of the public foremost in our minds.

On the question of scrutiny, our amendments were lodged by the deadline, as they were meant to be, and this is a good point at which to scrutinise them. Of course, if they could have been introduced earlier, I would have preferred that—members will forgive me for the fact that they were not.

To address John Finnie’s point, we are not proposing any changes to the eligibility criteria, so there will not be a change in the numbers. However, as he is aware, the two inspectorates—HMICS and HMIPS—conducted a follow-up inspection of the review of HDC, and there is a lot in that review that would help to negate and mitigate some of the risk aversion that he, rightly, talks about.

Therefore, with the protection of the public foremost in mind, it is possible to look at the HDC regime and ensure that it is being used in a proportionate and balanced manner to give people the opportunity to reintegrate into their communities and, we hope, to reduce reoffending. I thank Margaret Mitchell for her helpful comments throughout the debate, including the comments on my previous amendment that she made a moment ago.

The Presiding Officer

The question is, that amendment 124 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 69, Against 44, Abstentions 0.

Amendment 124 agreed to.

Group 9 is entitled “Parole Board for Scotland decision making: provision of assistance and information”. Amendment 3, in the name of Gordon Lindhurst, is grouped with amendment 125.

Gordon Lindhurst (Conservative, Lothian)

Briefly, the purpose of amendment 3 is set out within the amendment. It is to do with Parole Board hearings and it seeks

“to ensure that a prisoner whose case the Board is considering”

is able to understand

“the ... matters being discussed at the hearing”.

In technical terms, the amendment would simply bring the provisions for people who appear in front of the Parole Board into line with the provisions for people who are detained under the Mental Health (Care and Treatment) (Scotland) Act 2003, by having the provisions of that act made available to them. The point is to provide appropriate support for vulnerable prisoners at Parole Board hearings.

I will conclude with the words of the cabinet secretary in his letter to me of 10 June. He said:

“It is clear that your suggestion has merit”.

My delight at those words is equalled only by my disappointment that it is his intention, I understand, not to support my amendment 3. However, I intend to move and press it.

I move amendment 3

Humza Yousaf (Scottish National Party, Glasgow Pollok)

I never aim to disappoint, but in this case I probably will. If it were agreed to, amendment 3 would result in a small part of the Parole Board procedure being provided for in primary legislation, while the remainder would be provided for in secondary legislation in the Parole Board (Scotland) Rules 2001.

Gordon Lindhurst has made a strong argument for the principle of what he is suggesting: I think that we would all unite around the principle of vulnerable prisoners being given support such as he suggests. However, my issue is largely with where that support would lie in legislation and the unintended consequences and problems that that might incur. Although we disagree about amendment 3, I thank Gordon Lindhurst, who has been very constructive in his approach. We have tried as best we can to reassure each other mutually. I know that he comes at the issue on the basis of the experience gained from his professional background.

Rather than being able to be made through secondary legislation, any further changes to the provisions that are set out in amendment 3 would require an act of the Scottish Parliament. In this instance, I remain of the view that it is entirely appropriate that matters of procedure for the Parole Board be provided for in secondary legislation. That gives us the flexibility to change aspects of Parole Board procedure more quickly, should the need to do so be identified. For that reason, I consider that matters relating to procedure are for the Parole Board rules, rather than the bill.

In addition—I know that Gordon Lindhurst and other members will be aware of this—the consultation on transforming parole in Scotland, which closed on 27 March, included proposals to provide additional support to prisoners who are in the parole process. We are currently considering the responses to the consultation.

As I stated in my letter to Gordon Lindhurst when he lodged a similar amendment at stage 2, I consider that his proposals should be progressed as part of the response to that consultation. I have already given him an assurance that that will happen, but I put it on record again. We are planning a revision of the Parole Board rules at a later stage, once all potential changes to the rules have been identified. If Gordon Lindhurst’s amendment 3 is not agreed to, and he wants to discuss the proposal with me in advance of that process, I would be more than happy to have such a discussion.

Notwithstanding my views on the appropriateness of such matters being dealt with in primary legislation, I have considerable concerns about aspects of amendment 3 relating to the clarity of some of the terms that are used and the scope of the provision. I can expand on those matters if members would like me to do so. For those reasons, I urge Gordon Lindhurst not to press amendment 3 and I ask members to reject it, if he does.

My amendment 125 seeks to amend section 40A of the bill, which was inserted at stage 2 by an amendment in the name of Mary Fee. Section 40A would make it mandatory that, before making a recommendation to release a prisoner under section 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, the Parole Board take into account the impact of its decision on the prisoner’s family and the ability of the prisoner to reintegrate with their family. I say at the outset that I am sympathetic to the intention of that provision. It is only fair to put on record the tremendous amount of work that Mary Fee has done in relation to the families of people who are in prison. It is also worth putting on record the great work that is done in that context by organisations including Families Outside, which has informed many parliamentarians about the impact of imprisonment on family members.

However, I have various issues with the provisions of section 40A. There is a lack of qualification and specification in respect of who would be considered to be a “family member”. In addition, the requirement that it provides for would be mandatory, regardless of its relevance in individual cases. For example, when the prisoner has no intention of contacting the family, the requirement would not be appropriate. I also believe that it could be difficult for the Parole Board to satisfy the requirement in all cases—I am thinking of the need to obtain the views of the family to enable them to consider the impact that the prisoner’s release might have on them.

I have lodged amendment 125 to adjust the powers to make the Parole Board rules of procedure include specific reference to consideration of the “likely impact” of any recommendations of the Parole Board on prisoners’ families. I believe that that is a more flexible approach that will include in the 1993 act reference to the impact on a prisoner’s family of a recommendation to release, but will allow for detailed provision to be made in the Parole Board rules, where I consider such provision would be better placed, as I said of Gordon Lindhurst’s amendment 3.

Therefore, I urge members to support amendment 125.

Liam McArthur (Liberal Democrat, Orkney Islands)

I advise the cabinet secretary that he might come to regret the claim that he never aims to disappoint, but I assure him that we will support amendment 125. We recognise that this is an area in which Mary Fee has done a huge amount of work and made great strides, not just when she was a member of the Justice Committee but during her time in Parliament.

I thank Gordon Lindhurst for bringing amendment 3 back at stage 3. He set out the case well to the committee at stage 2. I am grateful to him for sharing the correspondence that he and the cabinet secretary have had in the interim.

Although I accept the cabinet secretary’s point about not wanting to build in too much rigidity to the work of the Parole Board for Scotland, it is difficult to see the general principles that are set out in amendment 3 altering over time. The point was well made that the wording reflects what is already in the Mental Health (Care and Treatment) (Scotland) Act 2003. For that reason, we will support amendment 3.

The Presiding Officer

I invite Gordon Lindhurst to wind up or to add any comments, and to press or seek to withdraw amendment 3.

Gordon Lindhurst (Conservative, Lothian)

I have nothing further to add.

I press amendment 3.

The Presiding Officer

The question is, that amendment 3 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 49, Against 64, Abstentions 0.

Amendment 3 disagreed to.

Section 40A—Parole Board decisions: consideration of impact on prisoner’s family

Amendment 125 moved—[Humza Yousaf]—and agreed to.

After Section 43A

Amendments 126 and 127 moved—[Humza Yousaf]—and agreed to.

Amendment 2 moved—[Daniel Johnson].

The Presiding Officer

The question is, that amendment 2 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 50, Against 63, Abstentions 0.

Amendment 2 disagreed to.

Amendment 128 moved—[Daniel Johnson].

The question is, that amendment 128 be agreed to. Are we agreed?