Welcome to the Justice Committee's 12th meeting of 2019. We have apologies from Shona Robison and welcome back to the committee Bill Kidd, who is substituting. Agenda item 1 is an evidence session on an affirmative instrument, the justice of the peace court, a sheriffdom of Strath Clyde and Freeson Galloway etc. amendment order 2019 draft, and I welcome Hamza Yousaf, cabinet secretary for justice and his officials Walter Drummond Murray, court tribunal policy officer and Joanne Tinto, director of legal services with the Scottish Government. I refer members to paper 1, which is note by the clerk, and invite the cabinet secretary to make a short opening statement on the instrument. Thank you and good morning, convener and committee. The order before the committee today delivers the relocation of the JP Court and Court Bridge to a new facility a mile and a half away in Airdrie. The building in Court Bridge is no longer suitable and one response to the Scottish Courts and Tribunals Service consultation described it as a building that has had its best days in the last century. The proposed new facility in Airdrie will provide a modern new building that will offer a far better experience for both court users and staff. The new building is across the road from the existing share of court in Airdrie and offers the opportunity for Scottish Courts and Tribunals Service to deliver more efficiently as the same group of staff support both courts and suffer some inconvenience in shuttling between buildings. Additionally, there is a small saving of £11,000 a year and reduced rent rates and service charge. No posts will be lost as a result of the relocation. Although parliamentary approval is required, I view that this is a predominantly operational matter and decision for the Scottish Courts and Tribunals Service so that it can make the most efficient use of resources. The proposal enjoys the support of the Scottish Courts and Tribunals Service Board and the Lord President. I am happy to lend my support and bring it forward to Parliament for consideration. Do members have any comments or questions? Good morning, cabinet secretary. I am MSP for Co-Bridge and Crescent, where the court is located. I think that you would expect me to ask a couple of questions. Under a quote that we have here in our papers for the committee, there is an aspect that says, while the statutory obligations require a high level of consultation and consideration, in that case, the proposal is fairly modest and entails moving co-bridge justice of the beast 1.4 miles. I can understand that, and I think that it is based on sound evidence. I have noted a lot of representation on this issue, but can I ask what consultation was undertaken, what the level of consultation was? Again, it would be for the Scottish Courts and Tribunals Service to answer more widely, but it did do a consultation, as you mentioned. A number of people and organisations, I should say, fed into that consultation. To give you some reassurance as local members, I would expect that you would want a number of factors but are also taken into consideration. From previous experience of court closures or court relocations, they decided to look at things like the transport links. They know that transport links between co-bridge and airdry are transport links in terms of the bus and the train. They took into account what the effect would be in terms of court business on airdry shared of court, if that court business was moved from co-bridge, so that there was not delays to your constituents if they were having to to go through the JP court business. All those factors were considered. There were a number of responses, as you said, largely from organisations, but it is probably worth pointing out that one of the organisations that gave input was Victim Support Scotland, so again, potential victims that may well be constituents of yours. They were representing them. Universtwll support in the consultation and a fair number of factors are also considered as part of the conversation to relocate. Thanks for the response, cabinet secretary. Reading over the proposals, I am in general agreement with them. There is no doubt that they appear in the courts situated in co-bridge. It is very close to airdry. I am actually surprised that it is 1.4 miles. I would have guessed less, so I do not think that the impact there would be massive. I also agree with the condition of the building. I grew up in the street adjacent to the actual courts of it. I know well about the building. It is a historic landmark, but I think that in terms of modern functioning, as offices in our court, it is probably not the best. You mentioned the impact on airdry. Airdry is a very busy share of court, co-bridge, just as the peace court is very busy. Did you get any figures as such about what the impact would actually be? It was absolutely part of the consideration for the Scottish Courts and Tribunal Service, SCTS, said that they are very confident that there will be no adverse effect upon performance at the share of court. In fact, the new facility provides new provision for vulnerable witnesses that will be available for cases in the share of court as well. The new facility helps with some of the court business in airdry share of court, as well as the relocated work from the JP court in co-bridge. No adverse effect on performance is foreseen at all, but clearly that was part of the consideration and conversation that SCTS took forward. In a final question, is there not any anticipated adverse effect on staff or all staff expected to move to the new premises? Quite the opposite. Some of the staff were experiencing inconvenience. I know that it is only 1.4mg, but you can imagine that they are having a shuttle between those two buildings. The new facility being adjacent to the share of court is very handy for the staff. As I mentioned in my speaking note, there are no job losses anticipated because of the move. I will only add that I am a member for Central Scotland in the native of co-bridge. I am very aware that this is a very old building, and therefore the move to a new and better facility is welcome. I certainly have not had any adverse comments to oppose that move. If there are no other comments from members, we move to agenda item 2, which is formal consideration of the motion in relation to the affirmative instrument. The Delegated Powers and Law Reform Committee has considered and reported on the instrument and had no comments on it. The motion will be moved with an opportunity for a formal debate if that is necessary. In motion 1.6.769, the Justice Committee recommends that the justice of the peace court, sheriffdom of South Strathclyde, Dromfries and Galloway, etc., amendment order 2019 draft be approved. I invite the cabinet secretary to move the motion. Do members have any further comments? I put the question in there for that motion 1.6.769, in the name of Ash Denham, be approved. Are we all agreed? We are all agreed. That concludes consideration of the instrument. The committee's report will note and confirm the outcome of the debate. Is the committee content to delegate authority to me as convener to clear the final draft of the report? Thank you. It remains for me to thank the cabinet secretary and his officials for attending and suspend briefly to allow for a change of officials. Agenda item 3 is continued consideration of the management of a Vendor Scotland bill at stage 2. I refer members to their copy of the bill and to the marshaled list of amendments and groupings for this item. I welcome back to the use of cabinet secretary for justice and his officials to the meeting. Just for the avoidance about, officials are here to assist cabinet secretary during the stage 2 debate. They are not permitted to participate in the debate and for this reason they do not have any name plates. We will be joined at various parts of the meeting today by other members who have lodged amendments and I welcome Lewis MacDonald, who is already in situ. We now begin our consideration of these amendments and I call amendment 93 in the name of the cabinet secretary grouped with amendment 104. Amendment 93 preempts amendments 54 and 55 in the group part 1, terminology relevant person. If amendment 93 is agreed to, I cannot call amendments 54 and 55. Cabinet secretary, to move 93 and speak to both amendments in the group. I move amendment 93 in my name. Amendment 93 and 104 are grouped as minor technical changes required as a result of amendment 118, which in turn extends the Scottish Minister's power to recall a prisoner from HDC amendment 118. It sets a new subsection into section 42 of the amendment 17A of the Prisoner and Criminal Proceedings Act 1993 to provide that a prisoner can be recalled from HDC if the Scottish ministers consider it to be expedient in the public interest amendments 93 and 104 are tidy up references to section 17A of the 1993 act and other parts of the bill. I move amendment 93 in my name. Do members have any comments? In that case the question is that amendment 93 be agreed to. Are we all agreed? We are all agreed. No, we're not all agreed. Not all agreed. There will be a division. Those in favour, please show. Those against, please show. Seven in favour to against amendment 93 is agreed. The question is that section 13 be agreed. Are we all agreed? We are all agreed. Amendment 132, in the name of Margaret Mitchell, is already debated with amendment 73, which I will not move. Amendment 56, in the name of Daniel Johnson, is already debated with amendment 2. Daniel Johnson to move or not move. Amendment 56, be agreed to. Are we all agreed? Yes. We are not all agreed. Those in favour, please show. Those against, please show. 7, 2 amendment 56 is agreed. Call amendment 57, in the name of Daniel Johnson, already debated with amendment 2. Daniel Johnson to move or not move. Move. The question is that amendment 57 be agreed. Are we all agreed? We are not all agreed. There will be a division. Those in favour, please show. Those against, please show. 7, 2 amendment 57 is agreed. Call amendment 94, in the name of the Cabinet Secretary, already debated with amendment 80, for Cabinet Secretary to move formally. The question is that amendment 94 be agreed to. Are we all agreed? We are all agreed. Call amendment 95, in the name of the Cabinet Secretary, already debated with amendment 84. I remind members that, if amendment 95 is agreed to, I cannot call amendment 58, which is a preemption. Cabinet Secretary to move formally. The question is that amendment 95 be agreed to. Are we all agreed? Yes. We are all agreed. I call amendment 96 to 98, in the name of the Cabinet Secretary, and all previously debated. I invite the Cabinet Secretary to move amendments 96 to 98 on block. Does any member object a single question being put on amendments 96 to 98? The question is therefore that amendments 96 to 98 are agreed to. Are we all agreed? We are all agreed. I call amendment 99, in the name of the Cabinet Secretary, already debated with amendment 84. I remind members that, if amendment 99 is agreed to, I cannot call amendment 59, which is a preemption. Cabinet Secretary to move formally. The question is that amendment 99 be agreed to. Are we all agreed? Yes. We are all agreed. Call amendment 60, in the name of Daniel Johnson, already debated with amendment 2. Daniel Johnson to move or not move. The question is that amendment 60 be agreed to. Are we all agreed? We are not all agreed. Those in favour, please show. Those against. The question is that amendment 60 is agreed to. I call amendment 100, in the name of the Cabinet Secretary, already debated with amendment 84. Cabinet Secretary to move formally. The question is that amendment 100 be agreed to. Are we all agreed? Agreed. We are all agreed. The question is that section 14 be agreed to. Are we all agreed? We are all agreed. I call amendment 101, in the name of the Cabinet Secretary, in a group of its own Cabinet Secretary, to move and speak to amendment 101. Amendment 101 changes the section 9 power in the bill, which enables Scottish ministers to make regulations in relation to use of devices and information to make them subject to the affirmative procedures. That was one of the recommendations from the Justice Committee in its stage 1 report. The regulation making power in section 9 empowers Scottish ministers to make provisions about the use of information obtained through monitoring, which expressly includes placing restrictions on the use of sharing of that information. Scottish ministers will be able to use this power to ensure that data is collected, retained, used and destroyed in accordance with the data protection law. We have listened carefully to the Justice Committee's views on the use of devices and information, and we are bringing this amendment forward in recognition of the significance of the section 9 powers and are content to make those subject to the affirmative procedure. I note that the committee also recommended making affirmative procedures to section 4 and 7 of the bill. Those sections enable Scottish ministers to extend electronic monitoring into other criminal court disposals such as bail or other forms of early release. We do not think that it is necessary to have affirmative procedures here. As the effect of those is only to widen the discretion of the courts and ministers in relation to electronic monitoring, the bill does not enable the creation of new criminal court disposals or forms of early release. Rather, it sets out those disposals and forms of early release that can be electronically monitored at the courts or in the Scottish ministers' discretion. The powers in this bill just ensure that where a movement or consumption restriction can be imposed by a court or the Scottish ministers if it is deemed appropriate to do so. The electronic monitoring regime can be extended to include that restriction. For those reasons, we do not think that the changes are required to the SSI procedure around section 4 and section 7, but we are taking forward this amendment in relation to section 9 around uses of information. I move amendment 101 in my name. Do members have any comments? In which case, cabinet secretary, we move straight to the question, I think. The question is that amendment 101 be agreed to. Are we all agreed? We are all agreed. The question is that section 15 be agreed to. Are we all agreed? We are all agreed. We are all agreed. Call of amendment 61, the name of Daniel Johnson, already debated with amendment 2. Daniel Johnson to move or not move. The question is that amendment 61 be agreed to. Are we all agreed? We are not agreed. There will be a division. Those in favour, please show. Those against. 7.2 amendment 61 is agreed to. Call of amendment 62, the name of Daniel Johnson, already debated with amendment 2. Daniel Johnson to move or not move. The question is that amendment 62 be agreed to. Are we all agreed? There will be a division. Those in favour, please show. Those against, please show. 7.2 amendment 62 is agreed to. The question is that section 16 be agreed to. Are we all agreed? We are all agreed. Call of amendment 103, the name of the cabinet secretary and a group of its own cabinet secretary to move and speak to amendment 103. When an individual is convicted on indictment and sentenced to imprisonment for less than four years, the court may impose a supervised release order, known as an SRO, on the individual where it considers it necessary to protect the public from serious harm from the individual on their release. The SRO imposed under section 209 of the criminal procedure Scotland Act 1995, excuse me, provides a period of supervision on licence for short-time prisoners who would otherwise be released into the community unconditionally. The SRO commences and the prisoner's release cannot exceed 12 months and cannot extend past the sentence end date. However, a short-term prisoner can become a long-term prisoner if they receive consecutive or partially concurrent sentences, and those separate sentences form a single term of four years or more. Although SROs are only imposed on prisoners' sentence to short-term sentences, a short-term prisoner with an SRO could become a long-term prisoner with an SRO at a later date by virtue of receiving additional prison sentences. Following changes to automatic early release in February 2016, a long-term prisoner who is subject to a 12-month SRO imposed for a constituent part of their single-term sentence could be released on licence for only six months. In those circumstances, the 12-month SRO would extend for six months beyond the sentence end date. That would result in an inadvertent breach of the requirement in section 209 of the 1995 act that the SRO cannot extend beyond the sentence end date. As long-term prisoners are always released on licence, there does not appear to be any need for an SRO to remain in place when a short-term prisoner becomes a long-term prisoner by virtue of the rules and single terming. For the reason that I have set out, I have brought forward amendment 103, which will allow an SRO to fall where a prisoner becomes a long-term prisoner by operation of the rules on single terming of prison sentences. I ask the committee to support the Government amendment 103 and I move it in my name. Do members have any questions or comments? That is just a brief technical query. I understand what the cabinet secretary just said, but I would like to clarify. Obviously, it is important that the possibility of a release in terms of rehabilitation remains in place for long-term prisoners. I just want to clarify that this is not removing that possibility. It is merely about technicalities and about what form that takes for long-term prisoners. Is that correct? Yes, as I understand it, it is correct. Although the changes were made to automatic early release of course, a long-term prisoner would still have all the programmes within the prison for rehabilitation but also the chance to progress through the normal routes to get release on parole and so on and so forth. That does not look to change any of that, but it is just technical for the reasons that I mentioned a moment ago. Any other questions or comments? In that case, the question is that amendment 103 be agreed to. Are we all agreed? We are all agreed. Call amendment 104, in the name of the cabinet secretary, is already debated with amendment 93. Cabinet secretary, to move formally. The question is that amendment 104 be agreed to. Are we all agreed? Yes. We are all agreed. The question is that schedule 1 be agreed to. Are we all agreed? Call amendment 63, in the name of Daniel Johnson, is already debated with amendment 2. Daniel Johnson, to move or not move? Not moved. Not moved. We therefore… I have a point of order if I might, convener, because I do not understand the process. I would like to move that amendment. Yes, you have to move it. I move the amendment in Daniel Johnson's name, amendment 63. The question is that amendment 63 be agreed to. Are we all agreed? We are not all agreed. Is that right? Those in favour, please show. Those against, please show. Two in favour, seven against, amendment 63, is not agreed. Call amendment 101, in the name of Lewis MacDonald, group with amendment 102. Lewis MacDonald, to move amendment 101 and speak to both amendments in the group. Thank you very much, convener, and I'm very grateful that the committee has grouped those two amendments together because they both essentially serve the same purpose. Amendment 1 seeks to make completion of a declaration of income form mandatory, and amendment 102 seeks to subsume deduction of benefit orders into enforced orders. The purpose in both cases is to make the system work the way it is intended, and to ensure that when fines are imposed by the courts, they are actually collected, and that the courts have the means with which to do so. You made a call that I made a submission last year in relation to the bill. That focused particularly on the content of amendment 1, the declaration of income forms, but it quickly became clear in pursuing the matter that the fact that benefit deductions were separate from other enforcement mechanisms was also a fault and a weakness in the current system. I'm very grateful to the cabinet secretary for discussing this matter with me some weeks ago and for writing to me further on the matter last week. Essentially, the inspiration, the prompt for these amendments, came from a very ordinary everyday case in Aberdeen, Michelle Gavin, a very hardworking woman, but a woman without a money in the bank, shall we say, who was the victim of a very minor offence and intruder broke her garden fence while seeking to avoid a conversation with police officers. The procurator of fiscal, rather than prosecute him for an offence, offered him a compensation order whereby he would pay Michelle Gavin the £400 that it would take to fix her fence. Since that happened three years ago, from that compensation order, the individual in question has paid £7.50 to Michelle Gavin. The court service confirmed that they weren't able to replace the penalty with a different penalty, for example that she should be compensated by the courts and the courts should then recover from the offender. That's not an option. They have no means to enforce the compensation order, because they cannot require the individual to complete a declaration of income from. They therefore don't know what income he has. They have no means to impose an alternative penalty. That means that three years later, Michelle Gavin is still £392.50 out of pocket. The individual has been subject to a warrant on five different occasions. He has been held overnight in remand on a number of different occasions. He has appeared in court on a number of different occasions, as I say on one occasion. He made a small payment. On all the other appearances in court in relation to this very minor matter, he has been offered opportunities to pay over a period of time, has accepted them, but has then failed to do so. This is, if you like, a situation in which what is required is the ability of the courts to require people who have been found guilty of an offence, or who have accepted an offer of a compensation order as an alternative to prosecution, to require them to pay up at the very minimum to provide the information that the courts need in order to pursue the matter. The purpose of both amendments, although they are different in form, is essentially the same. I do not think that there is any dispute that there is a weakness in the system that needs to be addressed. I think that that appears to be universally accepted. There was a report published by the Scottish Government in 2011, which summed up cases like Michelle Gavin's very well. There is still some churn within the system, the report said. Cases in which non-payment is accompanied by limited information about defaulters who are then cited to court, failed to appear, have a warrant issued, given more time to pay, do not pay, are cited back to court, failed to appear and so on. Improving access to information and therefore the ability of fines enforcement officers to pursue defaulters effectively could reduce the churn, limit the input of police and courts, improve the speed of fine payment enforcement and potentially reduce the costs associated with enforcement while increasing fine payment and, thus, the credibility of the fine. It is a win-win proposal to amend the law. There is no difference in the penalty imposed on a person, fin, guilty or offence or who accepts a compensation order. There is simply more prospect that that money will eventually be paid. That, clearly for somebody like Michelle Gavin, would make an enormous difference and for many other victims of crime it would be very positive. For those who become entangled in the courts because they have committed on offence, there will be much greater clarity about what the consequences are of a fine being imposed. The numbers that I have for 2017-18 are that, in that year, there were 48,000 court citations for the non-payment of fines for compensation and 21,000 arrest warrants were issued. That is clearly a vast amount of public resource that is being used to no particular purpose, which would be far better used in actually securing payment according to the letter of the law. That is what these amendments are intended to achieve. I move amendment 1. Comments from members, Liam Kerr and Liam McArthur. Just by way of reassurance, I am grateful to Lewis MacDonald for his explanation, which I think is sensible, and I certainly would like to vote for these amendments. Just for clarity and for reassurance, amendment 1 is not about means testing of fines, is it, Mr McDonald? I am happy to reply directly. It is not about means testing of fines. It does not alter the position of a person convicted or accepting a compensation order in any way, other than, as it says in the amendment, that it should complete the declaration of income form. At the moment, it is asked to complete the declaration of income form in these circumstances, but it is not required to do so. In many cases, it does not. Therefore, the courts are unable to proceed further. Liam McArthur, Daniel Johnson. I thank Lewis MacDonald not just for his explanation this morning, but for the note that he provided, and I recognise the fact that the bill is on a submission made in an earlier part of the process of consideration of the bill. I am notwithstanding that, I think that I have some anxieties about the lack of evidence that we took through stage 1 on an issue that, from the figures quoted by Lewis MacDonald this morning, seems to be part of a wider picture, which should give all of us cause for some concern. My anxiety is a little more along the lines of creating a requirement from which there does not seem to be an exemption for reasonable excuse, creating a requirement to submit a declaration of income failure to do so would then in itself be criminalised. There would be a penalty, a fine for that, and I think that there is a potential there, certainly in some circumstances, to exacerbate the situation, to accelerate a downward spiral in terms of financial difficulties. I think that Lewis MacDonald has set out very clearly illustrating it with a case, which I do not have to estimate the frustrations for the individual involved. It is obviously part of a wider issue. I feel more comfortable addressing this in the round, taking evidence from a number of the stakeholders, but it has certainly been helpful to air it through the context of the bill. I will listen carefully to what the cabinet secretary has to say in response. Daniel Johnson Thank you. I would just like to speak briefly in support. I think that what we need to recognise is that when people pursue claims such as those through the courts, it is normally at the end of a very prolonged period of stress and difficulty that they have been experiencing. If they then fail to get the result that they want purely because of a form not being filled in correctly, I think that we can understand why that would cause not just frustration but a great deal of mistrust and disappointment in the system. Therefore, I think that this is a sensible proposal, which means that a simple bit of bureaucracy does not stop the courts seeing through the process in which they have been asked to undertake. It is more important to address Liam McArthur's point. I think that I understand the points that he is making. The point at which those considerations should be made about what the impacts will be on the final of the individual is the judgment itself. It is simply about making sure that judgments and awards of compensation can be seen through once they have been made. I fully accept the points that he is making about those impacts, but the point for that decision making is the judgment itself. For those reasons, I would urge members to support those members, because I think that they are about making sure that those processes are robust and do what they are intended to do. First, I would like to thank Lewis McDonald for putting forward the case in representing his constitution in such a articulate manner. However, I do have concerns like Liam McArthur about that particular amendment and, probably before I would be in a position to vote for an amendment like that, I would need more information about how it could possibly impact on the process that we have in place. We have quite a robust process in place that diverts people from prosecution, which I think that there is general cross-party support in the chamber. In a low, this specific example—I do not think that anybody would disagree with the specific example, as I said, by Lewis McDonald—there is an injustice there, and in terms of the system, we need to look at that in the overall context. I would have real worries about that, so at this point in time, I am inclined to reject it, although obviously I will hear what the Cabinet Secretary of State has got to say on the mar. Similar to Fulton, I have some reservations in one being that we did not take evidence on that, so I do not feel that I know too much about it. The other one is that I just feel that I cannot see the logic in finding for a non-payment of fine, piling another fine on to another fine. I just agree that it is a problem, and it was well articulated, but I just cannot see the logic in doing that. John Finnie. Thank you, convener. I have commented on McDonald's outlining this story before, and I have to say that I find it deeply frustrating, because, as someone has already alluded to, we would hope that diversion from prosecution would be seen in the positive light rather than that. Those are clearly unacceptable figures. I remain to be persuaded that this is the answer. I do not know if it is just piling another list to a charge sheet that is going to make no orn anyway, but clearly we cannot have a situation where there are people many around this table who are encouraging alternatives to custodial sentences, and there is discredit being attached to that. Like others, I am very keen to hear what the cabinet secretary says, and I do not anticipate hearing that he thinks that the status quo is acceptable, so if that is not the answer, it might be the cabinet secretary outlining what possibly could be the answer. Just as it seems to me an eminently sensible amendment that having accepted a compensation order should refuse to fill in a declaration form does not seem to me just in any way, not least because of the charnic causes in court, the relevant costs and the fact that the victim is left in the case that you mentioned, Lewis MacDonald, three years later, without the payment being made for all these reasons, I would be minded absolutely to support his cabinet secretary. Thank you, convener. I can also thank Lewis MacDonald for articulating well the reasons why he's brought this forward and also his consistency. I know that he's had an interest in this, both in the side of the table that he's at but also in the other side of the table that he occupied when in his party, when in government a number of years ago, because we all, as has been articulated at this committee session already, got a joint interest in making sure that the fine system is working even better than it currently is. Let me try to address some of the points. A number of committee members have expressed some reservations around the amendments that Lewis MacDonald has brought forward. I share those reservations much for the same reasons around the evidence-based or lack thereof of this particular course of action working and also a challenge from committee members such as John Finnie, who just spoke a moment ago to the Government. If that is not the answer, what could potentially work? I will try to address those points. Before I do that, perhaps setting the context is hugely important. Fine collection rates in Scotland are very high. At the end of February, Scottish Courts and Tribunals Service released figures stating that 89 per cent of the value of sheriff court and JP court fines alike imposed during the three-year period 2015-2018 had either been paid or was on track to be paid. Of course, the remainder will be a hard nut to crack, and I appreciate that that is exactly what Lewis MacDonald and his amendments are aimed to try to fix. However, I am not convinced that amendment 1 is the best way to go about doing this. I am concerned, as others have already articulated, about the circularity of creating a new offence, attaching a penalty or a fine, precisely where the individual concerns have demonstrated their failure to engage with fine enforcement officers already. Lee MacArthur rightly asked the question about what evidence is there that this approach would necessarily work. The likelihood that the offence would be little used comes from the fact that, in England and Wales, it is not used to the extent that people might well think experience in England and Wales does not, in fact, suggest that the declaration of income form is very helpful at all. In any event, there are also technical issues with the drafting of this amendment. The two most important are that there is no deadline to fill in the form, and there is also no provision about a quote-unquote reasonable excuse. Lack of deadline means that it is impossible to know when the offence is committed. Lack of provisions on reasonable excuse would make this a strict liability offence. I would be extremely reluctant to do that. People can fail to receive notice through no fault of their own or may have perfectly good reason for non-compliance such as serious illness, injury, etc. There are other more technical difficulties with the amendment, which I can discuss with the committee wishes to. However, what I particularly want to say is that the Government will be working on arrangements that will make it unnecessary to seek information by declaration of income forms, and that is the point that John Finnie asked directly. Instead, it will be possible for the courtservice to obtain relevant information directly from the Department of Work and Pensions and HM Revenue and Customs. The courtservice has been seeking those powers for some time, but reserved legislation was necessary. However, that gap has now been addressed by the coming into effect of the Digital Economy Act 2017. Powers in that act enable information to be shared between public bodies for the purposes of taking action on debt to and fraud against a public authority. We plan regulations that, if approved, will enable Scottish bodies to move towards using the debt and fraud powers respectively. We plan to progress drafting, consultation on and scrutiny of those regulations in the next few months, with a view to laying finalised draft regulations before the Scottish Parliament, where they will be subject to the affirmative procedure in the course of 2019. If those regulations are approved, the courtservice would then be able to take the necessary steps towards developing a data sharing arrangement with DWP and HMRC. Obtaining information directly from DWP and HMRC would be a more effective way of dealing with the position, particularly for individuals who have already proved themselves reluctant to engage with the courtservice without creating another circular criminal offence. Given that this is a better way of improving the fines enforcement system and the difficulties that I have explained with Mr MacDonald's amendment, I hope that he will not press it if he does so, I would ask the committee to reject it. As to amendment 102, I have concerns both about the content of the amendment and the legislative competence. As regards difficulties with drafting, there are existing regulations made under section 24, subsection 1A of the criminal justice act 1991, the fines deduction from income support regulations 1992. Those already provide that the court may, after making an inquiry as to offenders, apply to the secretary of state asking for deductions of sums for the relevant benefit at any time where a fine has been opposed. Given that the court already has that power, I am not clear what the purpose in restating this in the amendment may well be. Subsection 2 of the proposed amendment weekly does not seem to add anything to the existing powers of 226E of the criminal procedures Scotland Act 1995. That already gives fine enforcement officers the power to request the relevant court to make an application. Deductions from benefits for the purpose of meeting an individual's debts are explicitly reserved and the 1992 regulation, which already exists in this matter, are made and subsequently amended by the UK Government. The application is to the UK secretary of state. If this amendment could be interpreted as a restriction on a court's ability to apply for a deduction from benefits order under the 1992 regulations, it could relate to reserved matters. That could present a variety's challenge to the legislation as a whole and so we can't support it. For reasons of competence but also of content, I hope that Mr McDonnell will not press amendment 1 or 2, but if he does, I must ask members not to support it should it be pushed to a vote. Before I bring Lewis McDonnell in, can I clarify something with the cabinet secretary? You mentioned the digital economy act would allow for the relevant information from public bodies to be provided. If a person had private income, would that be covered? I don't think that it would necessarily be covered by information that is with DWP and HMRC. From the point of tax, the tax that they pay, et cetera, et cetera, could be received from HMRC, so it could cover that side of their income. However, it seems to me that it would be clearer if the person just declared all the earnings in a declaration of income form? As I have said in my statement already, I understand the nut that is trying to be cracked. I am not convinced that this is the best way of doing it because of the circularity argument that has been made by a number of members but is one that I agree with piling on another offence and another fine potentially on to somebody who has already shown reluctance to pay one is just not the way to quite address a problem, which Lewis MacDonald has and others have well articulated. Lewis MacDonald, to wind up, presser, would draw. Thank you very much, convener. I listened very carefully to what the cabinet secretary had to say and it reflects what he said in his letter to me last week, which I am happy to acknowledge. I think that the point here in relation to amendment 1 is that it creates one mechanism to require a person before the courts to provide the information that the courts require. I very much welcome the steps that the cabinet secretary has indicated, which is to find another mechanism for doing the same thing from the other end and relating to the convener's question. I think that the convener's question was a sound one because, on the one hand, the measures that the cabinet secretary intends to pursue and I think that he said to have in place in the course of this calendar year, those measures would clearly be helpful in requiring public bodies or enabling public bodies to seek information from other public bodies about public benefits and other income and tax, as he has said. That is welcome. If you like, the similarly here is belt and braces. It is the measures that the cabinet secretary intends to take forward in relation to the public bodies and the measures that Parliament has the opportunity here to take forward in relation to the individual. That seems to me a sensible way to proceed. While I very much welcome what the cabinet secretary said, I do not think that it precludes the advantages that come from taking a different approach at the same time. Rona Mackay and the cabinet secretary and others raised the question of is this potentially going to create a circular offence finding people for non-payment offence. I think that the practical reality in a court of law in dealing with minor offences is that, where a declaration of income form is put before somebody and their lawyer says to them, you do not have to fill that in, they do not fill it in. If the lawyer said to them, you do have to fill that in, they would fill it in. I think that that is the reality on the ground. I take the point that the cabinet secretary has made that in the final version of the law, it ought to provide for a deadline, it ought to provide for reasonable excuse in order to avoid perversion of unintended consequences. If the committee agrees to those amendments today, then clearly the cabinet secretary will bring forward amendments in relation to those specific points in order to ensure that the law is working in the way that it is intended to do. I hope that that is his approach. I understand the questions that members have raised around whether we have enough evidence of the impact on the system. It is sufficient from my point of view to go back to the views of the Court of the Sheriff's Clerks and of the Scottish Court and Tribunal service in relation to the case that I mentioned earlier. There are no further sanctions available to the finance enforcement team for the penalty at this time. In order to make a testament of income or benefits, the offender must first provide the court with information regarding his income, which he has failed to provide. The offender is not legally obliged to provide that information to the court. Those are the views of the Scottish Court and Tribunal service. They would love this individual case to be resolved, and many thousands of cases like it are powerless to do so under the current provision. I am offering the Government and asking the Government to accept additional power for the court's service to carry out the duties that it is seeking to deliver. I know, certainly from the point of view of those involved with this particular case, but I suspect that for others in the Scottish Court and Tribunal service, having that power would be very welcome. The cabinet secretary raised concerns about whether amendment 102 was at risk of breaching virus, at risk of entering into the south areas, or potentially limiting the ability of the court to apply the existing law. Again, the practical reality is that, yes, the courts can seek deductions from benefits by applying to a court in the way that the cabinet secretary has described. The problem is that, currently, that has to be separate from other fines in forced induction. In other words, it doubles the burden of financial and administrative burden on those seeking to enforce fines. Therefore, it does not work effectively and efficiently at the moment. The amendment, although less central than amendment 1, would certainly improve the efficiency of the system, and I therefore would wish the committee to take a view on both of those amendments. Clearly, again, should the committee pass amendment 102, if the cabinet secretary's concerns around the technical aspects of 102 are well-founded, I am sure that he will come back at stage 3 with the appropriate amendments in order to ensure that the amendment works in the way that it is meant to do. It is simply meant to make it easier for the courts to do their jobs and for fine enforcement to carry forward. I intend to press those amendments. The question is, amendment 1, be agreed to, are we all agreed? Yes. We are not all agreed. Those in favour, please show. Those against, please show. Three in favour, six against. Amendment 1 is not agreed to. Call amendment 102, in name of Lewis MacDonald, who is already debated with amendment 1. Lewis MacDonald, to move or not move. The question is, amendment 102, be agreed to, are we all agreed? We are not all agreed. Therefore, there will be a division. Those in favour, please show. Those against, please show. Three in favour, six against. Amendment 102 is not agreed. The question is, section 17 to 32, be agreed, are we all agreed? We are all agreed. Call amendment 105, in name of the cabinet secretary, grouped with amendment 106, 107, 108, 109 and 110. Cabinet secretary, to move amendment 105 and speak to all the amendments in the group. Thank you, convener. I move the amendments in my name. Amendments 105 to 108 in this grouping make new provision in part 2 of the bill relating to disclosure of convictions. Stakeholders in the committee have generally welcomed the provisions in part 2 as a sensible and progressive reform to the system of basic disclosure. However, there was one specific area where some stakeholders suggested reforms could go further. As members will be aware, changes proposed in the bill will result in custodial sentences of up to and including 48 months having a disclosure period attached to them. That means that a person receiving such a sentence can, at some future date, know their conviction will become spent. The bill increases the threshold from 30 months in this regard. While welcoming the reform, some stakeholders raised concern that this still meant that people who receive sentences of greater than 48 months will be left facing a lifetime of disclosure. It is clearly the case that to receive a sentence of more than 48 months, a serious offence must have been committed. However, a system that does not even permit the possibility of not needing to disclose under basic disclosure would seem disproportionate and I emphasise that a term basic disclosure we are not looking to change anything in this bill within high-level disclosure. What amendments 105 to 108 do is provide for an enabling power for the Scottish ministers to bring forward regulations that would, in effect, create an independent review mechanism for certain sentences greater than 48 months. Not everyone in receipt of a sentence greater than 48 months would be able to apply for a review. Amendment 105 provides that if a person was serving a life sentence, they would not be able to seek a review, as that is not one of the currently excluded sentences mentioned in subsection 3 as being a relevant sentence for the purposes of review. Amendment 105 provides that if a person was subject to sex offender notification requirements, day 2 would not be able to seek a review. It is important to stress that nothing of those amendments directly affects the operation of higher-level disclosure. As members will be aware, that system is based on the offence that is committed rather than the sentence that is received. There are no changes being made, as I say, to higher-level disclosure in those amendments. More detail of amendment 105 provides for certain matters relating to the review process. That includes setting the time periods when a person can seek a review. For someone who has been convicted and received a sentence of greater than 48 months when aged 18 or older, they will be able to apply six years after the end of their sentence for a review. Someone who is receiving a seven-year sentence will be able to apply 13 years after being convicted in the six-year buffer period. For someone who has been convicted and received a sentence of greater than 48 months when aged under 18, they can apply three years after the end of their sentence. Someone who is receiving a five-year sentence will be able to apply eight years after being convicted to a five-year sentence in the three-year buffer period. Amendment 106 indicates certain general details of the independent review process that might be provided for in the regulations. Those include the process of making an application, any fees that are payable and how applications will be determined among a number of other matters. Amendment 106 also provides that any consequential changes that might be needed to the operation of higher-level disclosure can be made through regulations. Amendment 107 provides an enabling power to allow the Scottish ministers to adjust either the age when different buffer periods apply or indeed the length of those buffer periods, or indeed both. Those are found in amendment 105. This flexibility ensures that future changes can be made through secondary legislation if, for example, different buffer periods are considered appropriate at some future date. Amendment 108 provides that regulations under amendment 105 and amendment 107 are subject to affirmative procedures. Convener organisations such as the Howard League and the Scottish Centre for Crime and Justice Research called for steps to be taken to help those who are receiving longer sentences to be able to, at some future date, have their convictions considered spent. The taking of those enabling powers will allow the Scottish Government to bring forward a future scheme for full scrutiny by the Scottish Parliament through a formative procedure to allow exactly for that. I would ask members to support amendments 105 to 108. Amendments 109 and 10, or technical amendments, that make minor changes in the bill, is introduced with no policy impact, so I move amendment 105 in my name. Do members have any comments? I merely comment that I note that the cabinet secretary makes it quite clear that those are basic disclosures. I think that we can take some comfort that the regulations will be under the affirmative instrument procedure, so there will be transparency when we come to debate them. Cabinet secretary, do you wish to say anything, Father? The question is that amendment 105 be agreed to. Are we all agreed? Yes. We are all agreed. I call amendment 106 to 108 on the name of the cabinet secretary and all previously debated. I invite the cabinet secretary to move amendments 106 to 108 on block. Does any member object to a single question being put on amendments 106 to 108? The question is that amendments 106 to 108 are agreed. Are we all agreed? We are all agreed. The question is that section 33 and 34 be agreed to. Are we all agreed? Yes. We are all agreed. I call amendment 109 on the name of the cabinet secretary and all previously debated with amendment 105. Cabinet secretary, do you wish to move formally? Move. The question is that amendment 109 be agreed to. Are we agreed? We are all agreed. I call amendment 110 on the name of the cabinet secretary and all previously debated with amendment 105. Cabinet secretary, do you wish to move formally? Move. I call amendment 110 to 108. Are we all agreed? Yes. We are all agreed. The question is that schedule 2 be agreed to. Are we all agreed? Yes. We are all agreed. The question is that sections 35 and 36 be agreed to. Are we all agreed? Yes. We are all agreed. Amendment 111, in the name of the cabinet secretary, group with amendments 112, 113, 124, 125, 126 and 127. Cabinet secretary, do you wish to move amendment 111 and speak to all amendments in the group? Thank you, convener. Amendment 111 is provided for consistency and limits the extent of the amendment in section 37 of the bill, so as the reference to instrument of appointment in the appointment process to membership of the pro-board is no longer deleted. This is useful anticipation of amendment 112. Amendment 112 allows for the instrument of appointment to be annotated and reissued so as to show that the member is reappointed if and when this occurs by virtue of section 38 of the bill. This is for completeness in the administration of the process of reappointment to the pro-board. Amendment 113 is minor drafting amendment, the sense of the word is better stated as inclusive although no change in effect results. Amendment 124 and 125 are re-ordering amendments. Sections 44 and 45 are moved to the top of part 3 in order to accommodate new provisions while leaving the part to unfold in logical order. Amendment 126 will change the oversight body concerning the appointment of pro-board members. Section 38 of the bill amends the current appointment procedure for the pro-board of Scotland. That will provide that a pro-board member can continue in office on a five-year rolling basis. Re-appointment like this is until they reach the age of retirement, provided they meet the terms of re-appointment and they are not, for some reason, removed from office. Appointment to the pro-board is a public appointment in Scotland. That is currently governed by the Public Appointments and Public Bodies etc. Scotland Act 2003. The pro-board falls under the remit of the commissioner of ethical standards in public life, who monitors how people are appointed to the boards of specific public bodies. A present pro-board appointments are governed by the code of practice set by the commissioner, which provides that a member's term of office must be no more than eight years in total. Section 38 of the bill will provide that appointments to the pro-board can continue beyond eight years, which will ultimately put the pro-board out with the parameters of the commissioner's code. Therefore, this amendment removes the pro-board for Scotland from the Public Appointments and Public Bodies etc. Scotland Act 2003 and from the remit of the commissioner's code of practice. However, to ensure that independent oversight is continued and to bring the pro-board appointments in line with other tribunals, this amendment also amend section 10 of the Judiciary and Courts Scotland Act 2008 to add the pro-board to the remit of the judicial appointments board for Scotland. That will result in the judicial appointments board becoming the oversight body for the appointment of members of the pro-board of Scotland. To give the committee some reassurances, the pro-board is content with the change. Amendment 127 will change the long title of the bill in light of the various changes that I am proposing to part 3. This is a technical matter for the sake of continuing accuracy. I move amendment 111 in my name. Do members have any comments? The question is that amendment 11 be agreed to. Are we all agreed? 111 be agreed to. Are we all agreed yet? The question is that section 37 be agreed to. Are we all agreed? Yes. We are all agreed. Call amendment 112. In the name of the cabinet secretary, you are already debated with amendment 111. Cabinet secretary, to move formally. Moved. The question is that amendment 112 be agreed to. Are we all agreed? Agreed. We are all agreed. Call amendment 113. In the name of the cabinet secretary, you are already debated with amendment 111. Cabinet secretary, to move formally. Moved. The question is that amendment 113 be agreed to. Are we all agreed? Agreed. We are agreed. The question is that section 38 be agreed to. Are we all agreed? Agreed. The question is that section 39 be agreed to. Are we all agreed? Agreed. Call amendment 114. In the name of the cabinet secretary, yn y gwaith i'r ffordd i gyd yw'r Prifysgol Cymru, gyda llwyddiant 144. Y Llywyddyn Cymru yn y ffordd i'r sech sydd i'r 26C am gyfnodol yn Y Prifysgol Cymru, yw Y 1993, mae'n cael i ddweud o'r ddweud i'r prifysgol cylligeru o'r profiysgol i'r prifysgol i'r prifysgol i'r gilydd i'r cyfnodol i'r reintegratio i'r cymryd. Y llyfr y Prifysgol Cymru o'r Y 2015 yn y ffordd i'r 26C i'r y 1993, To allow the Scottish ministers to release a person up to two days early if that would be beneficial for their reintegration into the community. The legislation previously passed by Parliament provides that a release date can be brought forward by two days. That word creates a potential difficulty where a prisoner falls to be released on a Monday and public holidays such as Christmas day or boxing day fall immediately thereafter, as was the case on Christmas eve 2018. Christmas Eve is not a public holiday, but there is limited service provision on that day and no service provision for two days thereafter. In those circumstances, releasing a prisoner two days early would not assist the prisoner as they would be released at the weekend when vital services are also closed. The Scottish Prison Service can, of course, liez with local authorities and other service providers to ensure that services are in place rather than utilising the early release provision. Indeed, that was the approach that was taken by the Scottish Prison Service on Christmas Eve in Hogmanay 2018. The combination of weekends and public holidays that would cause this issue is not expected to occur again until 2029, but if we are good at nothing else, convener, forward planning is something that we are good at in the Scottish Government. However, we are taking this legislative opportunity to amend section 26C to provide that a release date can be brought forward by two working days. That would enable prisoners who would otherwise be released on a Monday where limited services are in place to be released on the preceding Friday. The change will bring the effect of legislation in line with the original policy intent and provide the flexibility to the time release to benefit reintegration and, of course, access to vital services. I support the provision and it is the phrase that the cabinet secretary used just at the end of the original policy intent. I suspect that this was an unintended consequence of the well-meaning move earlier, but if all the issues that concern the committee about effective release and having in place all the mechanisms in this pragmatic approach, albeit it is going to be sometime before it will need to be applied again, it is the way ahead. Liam McArthur? I would certainly welcome the addressing of what is, I think, an anomaly. We will come later on to amendments addressing some of the concerns that the committee has had about the ways that are taken to maximise the success of reintegration back into the community. How those amendments will fall remains to be seen, but addressing the current anomaly through this amendment is very welcome. I thank the cabinet secretary for bringing it forward. Cabinet secretary, do you wish to wind up? Nothing to add just to move the amendment at my name. The question is that amendment 115 be agreed to. Are we all agreed? Yes. Sorry, 114. The question is that amendment 114 be agreed to. Are we all agreed? We are all agreed. Amendment 115, in the name of the cabinet secretary, group with amendments 118, 119 and 120. Cabinet secretary, to move amendment 115 and speak to all amendments in the group. Amendment 115, 118, 119 and 120 form part of a package of measures in response to the two home detention curfew reports from HMICS and HMIPS. The other measures include creation of the offence of remaining unlawful at large, legislating to improve powers of recall and the non-legislative improvements to revise guidance and interagency communication. Disgrouping refers to changes specific to home detention curfew eligibility and operation. HTC is a form of early release from prison, as we know and can currently be granted to long-term or short-term prisoners. Subject to certain requirements as to the time served by the prisoner, HTC can be granted in the six months, leading up to the halfway stage of the prisoner sentence. For long-term prisoners, there is an added requirement that they release on parole at the pro-qualifying date. The halfway stage of the sentence must be pre-approved by the parole board. Amendment 115 repeals HTC for long-term prisoners. Those sentences to imprisonment for four years or more, leaving HTC available only to short-term prisoners. We consider that the repeal of HTC for long-term prisoners ensures that the community monitoring regime for long. I am grateful that the cabinet secretary has taken intervention. In relation to amendment 103, in a question from my colleague Daniel Johnson about supervised release orders, you answered that there would be no diminishing of a range of facilities available for prisoners. Surely amendment 115, which was told in a note—a purpose and effect note, which I presume is the source of the Scottish Government—will prevent long-term prisoners from accessing home detention curfew. Surely removing an option when we are looking at the management is not a positive move? I will address some of those concerns in my second speaking note, but it is probably worth also putting some context around some of the numbers of long-term prisoners in HTC. HTC corresponds to around 0.5 per cent, so half a per cent of all of those on HTC. I will come to this point in greater detail that long-term prisoners do not often take up HTC for a whole host of reasons, but some of the risks that might be involved in them being recalled back to prison. I would say that we are enacting and taking forward what I think are important measures on the basis of two independent inspectorate reports. We have to give them weight. The member knows fine well some of my views on the fact that the pendulum may have swung too directly in the other way when it comes to HTC for short-term prisoners, but I think that this move is a sensible one. That very point, the risk aversion that we are concerned that we have seen a significant drop, there you are legislating for a further drop, albeit those are small numbers. Those are individuals for whom a range of options should be available, including home detention curfew. There are a number of advantages for repealing HTC for long-term prisoners, but I do not think that although the pendulum, I agree with him and a number of members have made this point that there is a question about whether the pendulum has swung too far in the other direction. When long-term prisoners only account for half a per cent, I am not convinced that it is going to add greatly to that, but I do not take away from the principle of the point that John Finnie makes. I think that there are a number of advantages of repealing HTC for long-term prisoners. HMICS, if I go back to the independent inspectorate, calls for a presumption against HTC for those convicted of certain serious offences. That amendment achieves that aim in a more general sense. The length of a prison sentence generally reflects the seriousness of the offence of removing HTC from long-term prisoners, removing HTC from those convicted of more serious offences. It is also worse. I am very grateful for that. I am echoing the concerns that John Finnie has raised. During the evidence session, we were told by the SPS that the new procedures in place for consenting or agreeing to HTCs were far more robust. The assessment that would be made of any risk was, I think, likely to have a greater degree of public confidence. There has to be some concern that, in generalising the exclusion of the use of HTCs, there is some concern that the discretion that can be used by those who are very senior, who are extremely experienced, is being cut across, and I accept the fact that what we are not talking about here is large numbers. Given what is accepted as the benefit of HTCs in managing that reintegration into the community, what we are doing, essentially through this amendment that John Finnie has said, is removing the options of assessing that risk and identifying the best way of managing that process of reintegration for individuals, are we not? While Liam McArthur has points well, I fully accept the principle behind them. I suppose that there are a couple of points to make. First, it is worth noting that the SPS agreed with the recommendations of the inspectorate reports, all of the recommendations, as well as Police Scotland and the Scottish Government. They will be fully aware of the comments from the individual inspectorate and the course of action that is being taken. Second, it is worth noting that, for long-term prisoners, there is a substantial and robust process and programmes for rehabilitation within the prison service. A long-term prisoner will have gone through, depending on the offence, particular rehabilitation programmes. There is an understandable reason why the vast majority of long-term prisoners' overwhelming majority of long-term prisoners do not opt for HTC as things stand. I think that they don't go for it because there is a potential. They feel anyway that, if they were to go for it, there is a risk of being recalled because of a breach and so on and so forth. I think that there are good reasons why we are bringing this forward, but I will bring in Daniel Johnson. I thank the cabinet secretary for taking the intervention. I wonder if there is a slight contradiction in the logic that he is employing. I wonder if he is conflating seriousness of offence with length of sentence. For the very reason that he said about rehabilitation being in place for long-term prisoners, I think that there is some reason to think that somebody who has been in prison for a longer period of time might actually be safer to be released at the end of that time as compared to somebody who has been in for a relatively shorter period of time. I think that the crimes that might have been from the reports were things that might have received a sentence of three or four years, whereas prisoners who have received substantially longer sentences might well be in a very different category altogether. Indeed, looking at being released from prison almost a lifetime away from the original offence, there might be a very different person. I wonder whether, for those reasons, there might be some reasons to question the logic that the cabinet secretary is employing and, in particular, that conflation between seriousness of offence and length of sentence received. Felly, as a point of note, I said that generally the sentence length is accepted while often corresponding and aligning itself with the seriousness of offence that I accept. There are some anomalies to that, but generally speaking it can be accepted as thus. The other advantage of having HTC just for short-time prisoners is that you have a process that can then be focused and tailored absolutely exclusively to that range of prisoners, as opposed to having to maintain a set of arrangements to cater for those who are not likely to apply large numbers. It is worth noting at the moment that there are currently no long-term prisoners on HTC. It goes again to further demonstrate the point that I am trying to make that there are very few long-term prisoners that take advantage of HTC. The repeal of HTC for long-term prisoners would be introduced for those sentenced after a specific day, obviously, to avoid taking a benefit away from prisoners who are currently entitled to it. Work with stakeholders to explore and examine the operation of HTC for short-time prisoners and the new presumptions against HTC is on-going. The work that we know is led by advice from the risk management authority and the fact that it is more relevant to risk of serious harm. Converting the current presumptions against HTC into statutory exclusions may still be an option that is considered, and if it is required, it could be achieved by the Scottish ministers via subordinate legislation. Work on to some of the other amendments as well. Amendment 118, a present HTC can only be revoked and the prisoner recalled to prison on the grounds that there has been a licence breach or a problem with remote monitoring. That is in contrast with the provisions of the 1993 act to recall from parole and the provisions in the prisons and young offenders institutions rules 2011 for recall from temporary release. Scottish ministers must recall a prisoner from parole on parole board recommendations but may recall a prisoner from parole where recall is expedient in the public interest in that section 17 of the 1993 act. The governor may recall a prisoner from temporary release, whether or not the temporary release conditions have been breached in that rule 137 of the prison rules. Scottish ministers therefore have a wider discretion to recall prisoners from temporary release and parole than they do for recalling a prisoner from HTC. If an offender in the HTC is behaving in a way that causes concern but without breaching the HTC licence conditions, it would be very difficult for ministers to order the recall of that prisoner from HTC. Amendment 118 repeals completely the current limited grounds for recall from HTC and introduces a new power for ministers to recall from HTC where they consider revocation of the HTC licence and recall to prison are expedient in the public interest. That will bring the recall process of HTC into line with the wide discretion that ministers currently have to revoke a parole or temporary licence and recall prisoner to prison. We believe that the widening of the grounds for recall for HTC represents a tightening up on the management of risk around the monitoring of those on HTC. Amendment 118 will ensure that ministers will be able to recall prisoner from HTC as I say with that prisoner's behaviour in the community that gives us a cause for concern but stops short of a breach of licence conditions. Amendment 119, the Scottish ministers can recall a prisoner to prison from HTC where the prisoner has breached a licence conditions or there is a problem with remote monitoring. The Pro-Board currently has a role in reviewing that decision for both long-term and short-term prisoners where the prisoner has made representation to Scottish ministers. The Pro-Board can direct or decline to direct the Scottish ministers to cancel the revocation of HTC. Section 17A subsection 5 of the 1993 act currently provides that where the revocation of HTC is cancelled on the Pro-Board direction, the prisoner is to be treated for the purposes of section 3A of the 1993 act as if they had not been recalled. Section 3A of the 1993 act is the power for Scottish ministers to release prisoners on HTC. Previously, a prisoner who had been recalled from HTC was prohibited from obtaining HTC again in the future by virtue of section 3A subsection 5 of the 1983 act. Section 17A subsection 5, therefore, enables prisoners who had been recalled and had that recall cancelled to obtain HTC again in the future. That prohibition from HTC was repealed in 2016 and to a large extent repealed has removed the purpose of the section 17A5. The amendment clarifies that the effect of canceling a revocation of HTC is not that an individual should be immediately re-released, but rather that they should be reconsidered for release on HTC. That is a clarification of what we believe was the original policy intent of section 17A5 of the 1993 act and reflect how it has been operated and practised by SPS. Amendment 120 is a simple reordering of sections for draft-purposing and ease of reference, so I move all the amendments in my name. I wonder if the cabinet secretary could clarify if amendment 115 applies to long-term prisoners and therefore everyone is serving a sentence of four years and more. In note, he mentions that this covers the most serious offences and risk management is mentioned also. I presume that the reason for this is to try and eliminate possible risk to the public. However, if, and perhaps he can confirm this, it covers all long-term sentences of four years and more, it will cover fraud cases where potentially the person is not a threat to the public but would be denied the opportunity to benefit from HTC. In those circumstances, if that is the case, it seems to me that the cabinet secretary and the Government would be better to lay an amendment that spells out specifically the long-term offences that they consider should be covered by the legislation. I thank the cabinet secretary for being very generous in taking interventions. He will have picked up that there are some anxieties around amendment 115. The other amendments seem to be far more straightforward. I suppose that the concern that I still have having listened to what the cabinet secretary said is that the numbers of individuals that we are talking about in this regard are extremely small. There will be a variety of reasons for that but this does not appear to be an option that is deployed across the board and is very, very specific and it strikes me. It is almost certainly that because assessments have been made of the risk of the specific circumstances and of the benefits that are delivered in terms of the reintegration of those individuals back into the community. I would perhaps urge the cabinet secretary, perhaps at this stage, not to press 115 to engage in discussions with myself, with colleagues Daniel Johnson, with John Finnie and potentially others, to see if we can't find a way of allaying the concerns that are quite clearly being expressed here this morning about the direction that this amendment takes us in. There will still be an opportunity at stage 3 if he wishes to bring this back to the chamber, but at this stage I would hope that he would take seriously the concerns that have been expressed and maybe put a pause on this and not move amendment 115. Daniel Johnson then, Liam Kerr? I would just like to very much echo what Liam McArthur has just said. I fully understand and indeed agree with the sentiments that lie behind this in terms of needing to fully appreciate the recommendations set out by HMIPS and HMICS. I think that they need to have a much more robust approach to risk management when it comes to HDC. That being said, the end of the time spent in prison is a very delicate one. That period after someone has come out of prison is a very delicate time. I would suggest that that is even more so in some ways for long-term prisoners. The ability to monitor that person and to monitor their behaviour and where they are living and so on is a really important function to be able to have. Sometimes the focus on that area has been too much about shortening the period of time in prison. That is one element of HDC, but the other point is that monitoring provision, which is an important one for long-term prisoners. As I have said, I agree with its intent and, indeed, where it comes from is going to have unintended consequences. In terms of the cabinet secretary using the justification of low numbers being used, I would even wonder if that begs the question of whether or not those provisions could and should be being used more, especially for longer-term prisoners, to provide that monitoring that I have just outlined. Again, I would like to reiterate my support for Liam McArthur's suggestion of engaging with talks to ask the cabinet secretary to not press at this time so that we can explore other options for pursuing amendment 115. I understand entirely the principle of amendment 115, but I have listened very carefully to that debate, and I think that Margaret Mitchell's point, cabinet secretary, about the specific crimes and the differencing crimes. I would be keen to hear an answer to that, because I think that that was a point well made. I also associate myself with many of the comments that Daniel Johnson's just made, and I think that Liam McArthur's suggested way forward might be the sensible one. No-one else? Right, cabinet secretary, to wind up. Thank you to committee members for the questions and the debate. I suppose that I will just recap and answer some of the questions once again. To answer your question directly, I can cover all long-term prisoners, so you gave the example of somebody who committed a fraud and sent it to a long-term sentence of four years or more, yes, they would be included. Within that, it is worth me to just reiterate a couple of points. One that, of course, long-term prisoners will have a number of opportunities to be on rehabilitation courses, to delve quite deeply into the offence that has committed the reasons behind that and to try to change some of their behaviour, which would be different for somebody, for example, on a short sentence and a particularly short sentence. That would not be the case. There are opportunities for rehabilitation. The change would also allow for a focus on short-term prisoners and that one set of prisoners as opposed to a set of arrangements for both short and long. As I said, there are relatively no numbers. In fact, there are no long-term prisoners currently on HCC, notwithstanding all of that. I can hear what the committee has to say. I have always tried to approach committee with the absolute and open mind as possible. Therefore, I will take Liam McArthur's suggestion. I will not press the amendment. I will engage in conversations with the committee and will come back at stage 3 to see where we are. That amendment is not moved. Therefore, the question is that section 40 be agreed or we all agreed. I intend to suspend here for a short come for a break for five minutes. Amendment 135, in the name of Mary Phee, in a group of its own. Daniel Johnson to move and speak to amendment 135. First of all, I convey to the committee apologies from Mary Phee. This is a topic that she is passionate about. Although she is absent, in some ways I am very pleased to be able to move this amendment because I think it is an important one. It is often said by people that it is not just the person who serves the prison sentence that receives that sentence, their entire family does. When someone goes into prison, it disrupts all manner of different people that are related to and live with the person that interrupts relationships between husbands and wives, interrupts relationships between parents and children. The intent of this amendment is to make sure that such considerations are taken fully into account by the Pro-Board when it is making its decisions. I think that that is important. Time and time again, when this committee has been taking evidence or has been on visits to both prisons and to charities that work in this area, we hear about the impacts that prison sentences can have on families. It is only right that the Pro-Board takes the holistic decisions that I think that this amendment would ask it to, looking at the impact on families and taking that into account in its assessments when it is making decisions around parole. For those reasons, I am very happy to be moving this amendment today. John Finnie? I would like to acknowledge the considerable work that Mary Feast has done in this particular matter and lend my support to it. I think that the term victim is sometimes inappropriately used but it is certainly the case that there are victims in prisoner families and they are victims of a system that is often not of their making. I suspect that we may be told that this is happening anyway. If that is the case, that is good, but I nonetheless would support it because I think that it sends a very clear signal, if it is on the face of the ball here, that there are wider considerations of the impact of custodial sentences. I will be supporting this amendment. Kate, Liam McArthur, then Rona. Thanks very much. Unlike John Finnie, I put on record my admiration for the work that Mary Feast has done alongside families outside on this issue over a number of parliaments. Similarly, I think that the evidence that we heard just reinforced the fact that the release of a prisoner can have quite profound impacts on the wider family. I suspect that those considerations have a bearing on those decisions. Therefore, I would be interested to hear what the cabinet secretary has to say about the potential downsides of setting this out so explicitly in the bill. From what I can see, this does not appear to be overly rigid language used. It is simply confirming what we would assume takes place at the present time, but I will listen with interest to what the cabinet secretary has to say. For now, I would welcome the fact that Mary Feast has allowed this discussion to take place at stage 2. Rona Cymru. Thank you, convener. I would like to thank Mary Feast for introducing this amendment. I agree with everything that Daniel said and it is something that I am very passionate about as well. However, for me, the reservation would be the timing of it. I think that this will be addressed under the parole board review. Families outside have responded to the consultation and I know that the response will be fully considered. For me right now, I think that it should be put on hold. I believe that it may be a probing amendment, but it is again fully supportive of the intention of it. Fulton. Thank you, convener. I want to put on record my thoughts that Mary Feast has done remarkable work in this area alongside families outside in Lake Rona Mackay. It is an area where I am quite passionate about myself, but I do have some concerns at this stage. I do not know if the intention from Mary Feast was for it just as Liam McArthur said to get a discussion going around it for something else to come back at stage 3. However, I would like a bit more discussion, a bit more meeting the bones around the effects on perhaps licence conditions, but there is an exclusion zone in place, perhaps vulnerable family members and things like that. I certainly agree with the principle of the amendment, but I think that it needs a wee bit more work in teasing out before being in a position to vote for it. No one else? I am happy to support this amendment, which covers the impact that a prison sentence can undoubtedly have on the wider family. I really want to take this opportunity to acknowledge and commend the excellent work that Mary Feast has done on this issue. I also add my thanks to Donald Johnson for moving this, but I also place on record the credit to Mary Feast, who has been a long-standing advocate for the rights of families outside, both as an organisation but as families outside. Families are prisoners more generally in the wider society. The work that she has done in the cross-party group is also worth commending as well. Mary Feast's amendment seeks to amend the Prisoners and Criminal Proceeding Act 1993 to create a new section 1za to provide that the pro-board must assess and take into account the impact on a prisoner's family when making recommendations on the release of a prisoner, including any recommendation as to the conditions of release. As others have already alluded to, my concerns around the amendment are the fact that it would be on the face of the bill. I believe that the provisions in the amendment would be misplaced on the face of the 1993 act and would be much more appropriate in the pro-board. As the name suggests, the rules governing issues in and around parole are located for that flexibility and to ensure that there is not the rigidity that primary legislation often brings with it. I recently met Nancy Laux, chief executive of Families Outside, and we discussed some of the issues that prisoners' families face. I can understand some of the problems that they face. I am very sympathetic to their views. However, as Rona Mackay has already mentioned, the consultation on transforming parole in Scotland, which closed on 27 March, included proposals to provide additional support to prisoners in the parole process but also asked questions about whether or not we should look at matters surrounding the family of prisoners as well. We are currently considering responses to the consultation, including responses from families outside and some other responses that advocate the consideration of a prisoner's family should be taken into account when the pro-board is considering release. As such, I can offer absolute assurances that the provision of assistance to prisoners and issues relating to their families will be fully considered in light of responses to the consultation. We will be amending the Pro-Board rules 2001 as part of the implementation of the bill. We can take the opportunity to also look at the points being raised at that time as well. I would ask that the amendment is not pressed, but if it is pressed, I would ask the committee to reject the amendment. Daniel Johnson, to wind up, press or withdraw. I will just briefly wind up. I hear the comments that have been made in terms of the need for detail and questions regarding whether or not this is the correct place to put it. However, I would point out to members that this is a broadly stated amendment. It is one that essentially makes provision for a broad consideration. It does not have detail natural. In many situations, and I think that this is one, that is a positive advantage because it provides flexibility. It certainly does not preclude further amendments such as the cabinet secretary has laid out. What it does do, though, is make sure that such considerations are taking place. For those reasons, I think that the broad nature of this means that it is measured and sensible and in line with many of the things that we are looking at. Indeed, I think that the very fact that there is potential for other legislation on the Pro-Board coming forward means that further detail can be looked at, but this puts that legal duty firmly in place. For those reasons, I will be pressing the amendment. The question is that amendment 135 be agreed to. Are we all agreed? Not all agreed. Those in favour, please show. Those against, please show. Are there any abstentions? There are four in favour, four against, one abstention, and I use my casting vote in favour of amendment 135, which is now agreed. Amendment 116, in the name of the cabinet secretary, group with amendment 117. Cabinet secretary, to move, 116, and speak to all amendments in the group. Section 41 of the bill amends section 174 of the prisoners on criminal proceedings, Scotland Act 1993, to remove the word immediate to extend to all directions in respect of the release after recall to prison and replace it with the words quote without undue delay. As a consequence of the amendments in section 41 of the bill, it is necessary to amend section 10A to remove the word immediately from that section. Amendment 116 will achieve that objective. Amendment 117 is part of a tidying up of the operation of a licence recall stroke revocation system. Currently, the reasons for recalling a prisoner from a period of early or temporary release are provided on recall or on return to custody. The change made by this amendment will introduce a standard requirement and a more consistent operation of the system to recall whereby the reasons for a prisoner's recall to prison from parole, HDC or temporary release are provided on the prisoner's return to prison. That also ensures that a failure to provide reasons at the time of recall from parole does not impact on the ability to recall the prisoner to prison in what may be very urgent circumstances. I move amendment 116 in my name. Do members have any comments? The question is that amendment 116 be agreed to. Are we all agreed? Yes. We are all agreed. Call amendment 117 in the name of the cabinet secretary already debated with amendment 116, cabinet secretary to move formally. Moved. The question is that amendment 117 be agreed to. Are we all agreed? Yes. We are all agreed. Call amendment 128 in the name of Daniel Johnson, a group on its own, Daniel Johnson, to move and speak to amendment 128. Thank you, convener. This amendment stems from a fundamental principle and one that I think is really important, which is transparency in terms of the exercise of the law. I think that this is an important principle in a great number of areas when it comes to the criminal justice system, but I think that in particular the parole board. In this particular instance, I think that what is important is that it is important for the reasons for decisions being made to be well on the criminal justice system. I think that what is important is that it is important for the reasons for decisions being made to be well understood by the public, understood by the public both in terms of the source of those decisions and the criteria that are applied in the decision making process, but also in terms of the decisions themselves. That is what this amendment seeks to do. It seeks to require the parole board to do two things. First of all, to devise and publish a test or a series of factors that it uses and takes into account when making its decisions and making its recommendations. Similarly, to publish, albeit with modifications and redactions, where appropriate, the summaries of its recommendations that it makes. I think that those are important steps in terms of improving the transparency of the parole board indeed. I will be honest with the member that I have an open mind in this. I want to try to understand that. Talk about openness and transparency and also redactions. What do you anticipate may be redacted or the general nature of what might be redacted? I thank the member for that intervention and I think that it is an important one, in part because of one of the previous amendments that we have already accepted. There are a great number of factors and considerations that the parole board may take into account, which may involve other individuals whose privacy is important. I think that it would be an unfortunate consequence of this if the publication of decisions or a summary of those decisions compromise individuals' privacy who have committed no crime themselves. Nonetheless, their circumstances are material or relevant to whether or not somebody may be being released on parole. The associations and relationships that that individual might have are relevant to parole decisions. Therefore, it is important that the parole board has the ability to redact information when such considerations are at play. Just to sort of round off, there is in some ways a brief and straightforward amendment. Again, I think that that is important. I think that it is important that we are not overly prescriptive in terms of black letter law, what these tests or factors should be. I think that that is a matter to be determined by the parole board itself. However, I think that the fact that there are problems is important. I think that that will be an open and transparent process. Indeed, I hope that this is an important step forward in terms of improving some of the issues that arose around the war boys case. In particular, those issues came into question in terms of the nature of the decision making of the parole board in England and Wales and why they had made the particular decisions that they had. I understand that the operation of the parole board in England and Wales is substantially different to that in Scotland. Nonetheless, I think that those questions are not difficult to conceive of circumstances where they could arise in Scotland. I think that this step will improve that transparency and hopefully help us to avoid any similar situations or circumstances in Scotland. To move amendment 128. Thank you very much. I thank Daniel Johnson for lodging the amendment and setting out clearly the intention behind it. The point that he makes in relation to transparency is absolutely a pivotal one in terms of securing public confidence. A little like John Finnie, I recognise that the reference to modifications and redactions is Daniel Johnson's reasonable attempt to accommodate the restrictions on that transparency that would be required. I have to say that it would not simply, to my mind, be in instances relating to third parties whose details would require to be redacted. I think that there would be details in relation to the individuals themselves, which may not be appropriate to release into the public domain. I came to this amendment with an open mind. My anxieties are that we have a consultation on the parole board at the moment where I think that this debate is absolutely germane. I wish to see it picked up whether, in the 2001 rules that the cabinet secretary referred to earlier, I am less certain. Nevertheless, I think that the point about increasing public confidence through a greater transparency is a point well made and therefore the amendment in that sense has served a useful purpose. I am certainly minded to support this amendment, which would lead to greater transparency in the parole process, and that is most certainly to be welcomed. The openness transparency of the parole board is certainly an issue when I have spoken to a number of families and the families of victims. They tell me time and time again that they wish to see greater openness, greater transparency. I think that that would reflect in conversations every single committee member here has had. I am committed to an absolutely open and transparent parole board. I consider that the amendments that were put forward by Daniel Johnson certainly go some way in achieving that aim. I am supportive of what he is trying to do. I would be willing to work with Daniel Johnson to assist him to bring forward an amendment at stage 3, which provides for the parole board to publish the test or factors that take into account when making a recommendation. However, my concerns would be that I would ask that he would remove the requirement to provide a summary of recommendations. I consider that it is very much a matter more appropriate for the parole board rules of procedures that are already referenced and one that has also been raised in the recent consultation, which has also been referenced. I have also some concerns in the technical detail or lack thereof that have been referenced by both John Finnie and by Liam McArthur in relation to the redaction of information. I do not think that any of that is particularly insurmountable. I would ask Daniel Johnson not to press his amendment and to work with the Government to come forward at stage 3 with an amendment that fulfills the general aims of what he is trying to do. Perhaps there is one exception about the requirements to provide a summary of recommendations, which I have some reservations about. Daniel Johnson, to wind up, press your withdrawal. I would like to thank members for their constructive comments and the cabinet secretary. I thank everyone for acknowledging the intent behind it. On the basis of what has been said and what the cabinet secretary has offered, I will be withdrawing this. I look forward to working on coming up with a revised amendment at stage 3. I will withdraw the amendment. Is the committee content that Daniel will withdraw this amendment? We are content. Thank you. Amendment 118, in the name of the cabinet secretary, is already debated with amendment 115 to move formally. Moved. The question is that amendment 118 be agreed to. Are we all agreed? We are agreed. Amendment 119, in the name of the cabinet secretary, is already debated with amendment 115. Cabinet secretary, to move formally. Moved. The question is that amendment 119 be agreed to. Are we all agreed? We are agreed. The question is that section 42 be agreed to. Are we all agreed? We are agreed. Amendment 120, in the name of the cabinet secretary, is already debated with amendment 115. Cabinet secretary, to move formally. Moved. The question is that amendment 120 be agreed to. Are we all agreed? We are all agreed. Amendment 79, in the name of Gordon Lindhurst, in a group on its own. Gordon Lindhurst, to move and speak to amendment 79. Thank you, convener. The purpose of this amendment is to ensure proper representation is available to vulnerable prisoners at parole board hearings. There appears to be a certain lacunar gap in the legislation at present. The drafting of this amendment, submission of it and a letter on this from the cabinet secretary and the consultation with the Scottish Government on parole matters, transforming parole in Scotland, which closed in 27 March 2019, happened more or less simultaneously and I think could be said to have crossed in the post would be the old fashioned expression. I am thankful to the cabinet secretary for the letter that he sent me on this matter, indicating that he is wishing to consider matters further in light of the consultation, which has just closed. Perhaps he might wish to make some comments at this stage, convener. You are so minded to allow. Can you move amendment 79? I'll move amendment 79. Do members have any comments? It certainly seems to me very sensible on the face of it, but I'm interested to hear what the cabinet secretary has to say. John Finnie, Daniel Johnson. I think that there's a very fundamental principle here that is worthy of support and hopefully will be picked up by the Scottish Government. You would imagine that it must be fundamental that everyone involved in a process understands the process. If that's not the case, then clearly it's not a fair process. I hope that that issue would be addressed and I thank the member for bringing it forward. I'd just like to briefly say that I very much agree with what John Finnie has just said. I think that this is a very sensible and progressive suggestion, and I look forward to hearing what the cabinet secretary says and seeing how this proposal can be forwarded. I don't want to delay things much, convener, other than to echo what Daniel and John have just said. I think that the crossing in the post may be the issue that we need to get round. I hope that the cabinet secretary can offer some reassurance in regard to how that will be dealt with. I thank Gordon Lindhurst for his constructive approach to this. He's not just written to me on this but approached me about how to take forward an issue that I think absolutely has substance and absolutely has merit as well, no doubt from his considerable experience before being an MSP as well. This amendment refers to matters relating to the procedure that the Pro-Board undertakes when considering a case. Pro-Board proceedings are, as I've said, a number of amendments set out in the rules made by Scottish ministers under section 24 of the Prisoner and Criminal Proceedings Act 1993. As rules of procedure may require amendment to deal with new eventualities or indeed to adapt to changing circumstances, it's for those reasons that rules of procedures are set out in secondary legislation. I'm concerned that the approach adopted in this amendment would perhaps have a detrimental impact on the ability to amend procedures of the Pro-Board in those rules in the future. If accepted, the amendment would result in part of the Pro-Board procedure being provided in primary legislation while the remainder of it would be provided in secondary legislation in the Pro-Board rules. The result of this would be that, as I say, any further change to the provisions set out in this amendment would require further act of the Scottish Parliament rather than being able to be taken forward via secondary legislation. In this instance, I remain very much of the view that it's entirely appropriate that matters of procedure for the Pro-Board should be provided for by secondary legislation. Again, it provides us with the speed, the flexibility to change aspects of Pro-Board procedure at a quicker pace and, as I say, it should be in the rules as opposed to in the face of this bill. I do agree that the proposal absolutely has some merit, but I would prefer to gain an understanding of how the appointment of a curator Adlidham would work, how that impacts on prisoners appearing before tribunals who are already entitled to assistance by way of representation. Perhaps, if Gordon Lindhurst is not minded to press it, I can give him further information on what that support for vulnerable prisoners looks like in relation to parole hearing. The number of members have referenced the consultation that is closed on parole just last month, and I can give an absolute guarantee that the issue that Gordon Lindhurst raises will be part of our consideration when it comes to consultation analysis. There are a few technical issues that I would have with the amendment, but I do not think that I need to go into any great detail into those technical issues. I would ask that Gordon Lindhurst does not press the amendment, works with me after this committee meeting to have a discussion about what is in the consultation and will be a result of the consultation for the rules of parole board hearings, and then we can take matters forward thereafter. Of course, he can bring forward his amendment thereafter at stage 3. Gordon Lindhurst, to wind up, press or withdraw. In light of the minister's commitments, I am not going to press the amendment at this stage. Amendment 79 is not pressed. The question is that section 43B agreed to. Are we all agreed? We are agreed. Amendment 121, in the name of the cabinet secretary, grouped with amendment 122, 122A, 122B, 122C, 122D and 123. Cabinet secretary, to move amendment 121 and speak to all amendments in the group. I will speak to, but I move amendment all the amendments in my name. Scottish Government amendments in this group, 121, 122 and 23, relate to persons in lawfully at large. They are brought forward as part of Scottish Government's response to recommendations from Her Majesty's Inspectorate of Constability in Scotland. The proposals that the Scottish Government has brought forward provide a new and additional punitive element for those that remain in lawfully at large and also address the question of powers of entry. For the police before I go into the substance of the detail, convener, can I put on record certainly my admiration for the McClellan family who I've met? I listened to a number of occasions. We have our differences absolutely and they will be the first to tell you such, but that does not for a minute take away my admiration for them. The offence and the subsequent changes to the HDC regime, as I have said, are a result of the inspectorate reports and the aftermath of that terrible tragedy. Amendment 121 is a more technical amendment in this grouping. Part 15 of the prisons and young offenders institutions, Scotland rules 2011, provides a regime of temporary release for prisoners. Temporary release is considered to be a form of release on licence in practice and prisoners are issued with temporary release licence, with licence conditions. However, temporary release is not referred to as a form of release on licence in the Prisoners Scotland Act 1989 or the prison rules. Amendment 121 simply clarifies that temporary release is a form of release on licence. That will mean that there can be a consistency and approach on how we refer to parole HDC in temporary release throughout the bill. That will all be forms of release on licence. The Substance Amendment 122 creates the offence of remaining unlawfully at large. An offender can currently be unlawfully at large in any one of the following circumstances, where the offender remains at large after being recalled from HDC, where the offender remains at large after being recalled from parole by ministers, either with or without parole board recommendation, where the offender remains at large after being recalled from temporary release by the governor. The offender fails to return to prison on the expiry of a period of temporary release. The policy intention is to mirror the offence in England and Wales and create an offence of being unlawfully at large and failing to return as soon as reasonably practicable. It is important to stress that, following the creation of an unlawfully at large offence, there will be two aspects of being unlawfully at large. First, the recall of a prisoner to prison, or the expiry of a period of temporary release, means that the prisoner is unlawfully at large and can be arrested without warrant. Where a prisoner is recalled to prison, the prisoner needs to be aware of the recall order to be unlawfully at large. Secondly, if a prisoner who is unlawfully at large fails to return to prison as soon as reasonably practicable, the prisoner would commit an offence. The offence would be committed by the prisoner fails to return to prison as soon as reasonably practicable after being notified of the recall or after the expiry of a period of temporary release. The unlawfully at large offence does not cover electronic monitoring imposed by a court in a community sentence. An offender cannot be unlawfully at large under a community sentence. When an offender breaches the terms of a community sentence, the court already has an ability to vary the sentence and posify or return people to custody. The unlawfully at large offence is framed so as to provide the offender with a number of defences to a charge of remaining unlawfully at large. For example, they had a reasonable excuse for the delay. They were not notified or the notification was not properly affected. The return was as soon as possible in the circumstances, or although they failed to return to prison, they took all reasonable steps to return. By way of clarity, if I may, cabinet secretary, in terms of that notification, I saw that there was some detail about this, but what does it mean to be notified? By definition, if someone is unlawfully at large, they may well not be at premises or a location where they are otherwise being expected to be. There are two safeguards, both in oral and written notification. In practice, an address would be given for where that individual is to be located during the period of HTC, so the curfew period. Of course, every attempt would be made to get that notification out to them. The reasonable excuse for the delays and the points that I have just mentioned. They are there for the absolute exceptional reasons why somebody would not receive a notification. In the vast majority of instances, if somebody has to have a recall notice, I have seen it. I am sure that he has been to the G4S centre to where, in the first instance, an oral notification would potentially be given, but if not, that would also be followed up by a written notification. There are safeguards in place. As I said, the exceptions that I am talking about are, I would imagine, the exception as opposed to the rule. If I see a Zybra raised, he may wish to come back on those matters, but I will come forward. I understand the point that has been made entirely. I am just not necessarily persuaded because I am running a scenario that says, if I am the one to be recalled, I have a defence if the authorities have not been able to notify me in accordance with the legislation the time to be recalled. Therefore, if I can structure a set of circumstances where you are unable to notify me, then I can avail myself of the defence. That feels a bit odd to me. It is not quite the case, so I will give some clarification. Perhaps I was not as clear in what I said a minute ago, but it is about being deemed notified. Even if you were not at the premises, which you should be at, because there is a curfew on you, 7 to 7 generally tends to be the case. There is a curfew on you. You should be at that premises. A written notification is then left at that premises. Even if you have not received it and say that you have not received it, you have been notified, because you should have been at that address at that period of time. I hope that that gives them a little bit more reassurance on that point, so that is not an exception. I am obviously hoping to members that they wish to come back for further clarification. I thank the cabinet secretary for giving way. Again, one of the other scenarios that has cropped up is people giving an address that is outside of Scotland. Could the cabinet secretary perhaps clarify what would happen in the circumstance that someone gives an address in another part of the UK? One of the recommendations of the inspectorate reports was that this issue had to be looked at in a more robust regime in place between interagency communication. All of us will remember that. I can clarify that there is now a point of contact with every single one of the forces in England and Wales, which previously did not exist for this particular issue. It would be up to the force in question in England and Wales to give forward that notification. The offence that we are creating mirrors the offence in England and Wales. You would think that the forces in England and Wales would have more experience, but we would certainly be aware of what we are trying to do and some practical experience of what we are trying to do. The important point to give Daniel Johnson the reassurance is that there is now a point of contact within every single police service in England and Wales that previously did not exist. If there is no other intervention, I will make some more progress on this amendment. I suppose that the advantages of the unlawful large offence as follows would enable the police to apply for a warrant to enter and search a property to apprehend a person suspected of committing an offence using powers in section 1 of the Criminal Justice Scotland Act 2016. It provides a criminal sanction, which could act as a deterrent for this behaviour. That would sit alongside other sanctions that exist whereby the unlawful large offenders return to prison and require to serve at the remainder of their sentence but also serve a period equivalent to the time spent unlawful large. It reduces the need for further offences, such as we have discussed before, such as cutting off a tag or breaching licence conditions in general, as anyone who breaches licence conditions can be recalled and their failure to return thereafter would be a criminal offence. If I took amendment 1, 2, 3, once an offender is unlawful at large, the police or a prison officer can arrest the offender without warrant under section 40 of the 1989 act. There is a statutory power in section 40A of the 1989 act to apply for a warrant to arrest an offender who is unlawful at large. However, section 40A does not make it clear who can apply for a warrant or whether the warrant could include a power of entry and search. Accordingly, we are proposing to amend section 40A of the 1989 act to make it clear that the police and only police can apply for a warrant under that section and that the warrant will include a power to enter and search premises to locate an offender who is unlawful at large. We believe that this will address the situation that was referred to in the inspectorate's report in relation to a lack of clarity around the responsibility for obtaining a warrant under section 40A. Also, when it was an issue that was raised with me by the McClelland family on a number of occasions, of course, I'll take intervention. The wording in subsection 3 refers to conferring a power on a constable using such force as the constable considers necessary. My understanding is that the use of reasonable force is the standard language in those circumstances, rather than implying a level of discretion on either the individual constable or the police more generally. I wonder whether you might reflect on the wording of that ahead of stage 3 and see whether there may be an amendment that is needed there. I am happy to reflect on that wording. I think that Liam McArthur raising it wasn't an issue that had been raised with me before, so I'll reflect on that point. Amendment 123, I should say, also tidies up some of language used in section 40 of the 1989 act and in section 93 of the 1993 act to make it clear that the warrant procedures in section 40A of the 1989 act apply to all offenders who are unlawful at large. I turn to amendments 122A to C. I cannot support those amendments from Daniel Johnson. I propose to resist them on the basis that they would restrict the ability of the court to determine how best to respond to the offence. The effect is unduly punitive, restricts the discretion of the courts to consider the circumstances before them and to sentence accordingly. I have to say that it is an unusually regressive proposal from someone who I know only to be a progressive on such matters. Custody is already one of the options that they can consider. At a time where we have the highest prison population in Western Europe and where our prisons are operating so close to capacity, removing at least the option for the court to consider non-custodial disposals in any situation needs carefully thought. I am not convinced that this is the right approach. I also note that amendments 122A to C would remove the ability of the courts to impose on prison sentence alongside a fine in cases where the severity of the offence merits such a penalty. The related amendment 122D is unnecessary as there are existing legislative provisions covering the issue that Daniel Johnson seeks to address here. In addition, the replication of existing legislation could cause confusion as to which particular provisions should apply in a given case. When an offender commits an offence punishable by imprisonment while serving a previous sentence of imprisonment in the community, section 16 of the 1993 act enables that previous sentence to be restated by the court and the sentence for the new offence to be imposed consecutively. That enables the court to provide that the time between the commission of the unlawful at large offence and the imposition of a further prison sentence for the unlawful at large offence is to be served as a separate prison sentence. Section 40 subsection 2 of the 1989 act provides that time spent absent from prison without lawful authority does not count as time served towards the underlying prison sentence. That removes any need for amendment 122D as the time that a prisoner spends in lawful at large is required to be served by that prisoner when they are returned to prison. Amendment 122D therefore creates confusion. As I said, it replicates legislative provisions already in force, so I would urge Daniel Johnson not to press this amendment. Amendment 121, in my name. Daniel Johnson, to speak to amendment 122A and other amendments in the group. Thank you very much, convener. Can I say at the outset that in broad terms I support the provision of this new offence? I think that it's an important one for the reasons that the cabinet secretary sat at. The Craig McLelland murder established that there were deficiencies in both the way that the HDC was being operated, but also critically in terms of the powers that the police had. Importantly, that point around the warrant to enter premises was a key point that came out of those circumstances. Therefore, I welcome the introduction of this offence. I think that it is a positive step forward. However, I do think that it's important that this offence has teeth, and that is essentially what my amendments seek to do. In short, what this seeks to do is to have the effect of when someone is unlawfully at large, that time spent is added on to the time that they serve in prison. The cabinet secretary said that it's an unusually regressive proposal coming from someone who normally espouses progressive proposals in criminal justice. Let me reply to him in this way. I am someone who tries to be progressive. However, I have a very firm principle, which is that criminal justice must absolutely provide people with the opportunity and the ability to reform and rehabilitate. However, when they do not take those opportunities and when they breach the opportunities that have been extended to them, they must also then face the consequences. That is exactly what these set of amendments seek to do. When someone is on HDC, when they are out on tag, they are on HDC as an alternative to prison, as an alternative to time spent in prison. So, when they breach those conditions and when they spend time unlawfully at large, I think that it's important that there is a direct consequence of that. I think that that does mean that they have to return to prison because this is an alternative prison and they are breaking the conditions that have been set out in front of them. Absolutely. I wonder in relation to the cabinet secretary's point about removing judicial discretion effectively. Could you comment on that? I think that we do need to be cautious about it in such a way, but this is not an isolated example. I think that the law in a number of situations sets out clearly penalties that should be afforded. It has a very simple idea that the time spent unlawfully at large, that time that someone is in breach, gets added on and really stipulating both that but also that alternatives, non-custodial alternatives, are not acceptable in the circumstances that someone breaches the conditions of their HDC. I think that because an HDC is essentially an alternative prison, I think that that's a sand principle. I'm grateful to Daniel Johnson on that. I'm actually broadly sympathetic to the amendments that he's making, particularly A and D, but on B and C I do hear the cabinet secretary's point. Could you explain why he's removed the ability to fine as an alternative because that does sound rather harsh? For the simple reason that I think that the public's confidence in HDC and how it operates and the consequences when people breach has been severely shaken. I think that what that does is provide a very simple and understandable set of consequences for when people breach HDC. The simple consequence is that if you breach, the time that you spend unlawfully at large will be added on to a sentence. It's that simplicity and clarity that I think will help to re-establish confidence in the HDC regime. That's why I've made those proposals. I was about to close them. I just wonder, though, if the member thinks that there's a possibility that he's trying to legislate for what would possibly be appropriate for the case that he references but may not be appropriate for all cases. I struggle to conceive of circumstances whereby I think that if someone breaches HDC, that alternative to prison, that returning them to prison isn't the appropriate thing to do. HDC is put in place in lieu of someone serving time in prison. I think that because of that simplicity and because it is an easily understood proposition and consequence, I think that those are the reasons that I'm making those proposals in those amendments. Any other members have any comments? It's Liam McArthur. I welcome the general direction of the Government's amendments in this section. I think that it does pick up concerns that were raised with us throughout the consideration at stage 1 of this bill and notably around the concerns arising from the tragic events surrounding Craig McClellan's murder. I think that I alluded in the intervention to the cabinet secretary to a drafting anomaly in relation to 1, 2, 3. I think that, similarly with 1, 2, 2 as well, there have been concerns raised with me by the law society about some of the language used. There's a concern in relation to proper notice orally in writing as opposed to orally and in writing. I think that the concern being that persons who are going on temporary release are not necessarily fully understanding the details of their licence. Again, it might be worth engaging with the law society ahead of stage 3 on the basis of those concerns. Similarly, in the same subsection 2, there's a reference to individuals being warned as opposed to advised. That language strikes a slightly discordant note. There are anxieties too about the way in which the language is used about the nature of the fixed address and the implications that that might have. I think that none of that detracts from the value of those amendments and the improvements that they'll deliver through this bill, but I think that if the law society are raising the sorts of concerns around the drafting, I would hope that those could be picked up by the cabinet secretary and his officials ahead of stage 3, but on the basis of what he said, I'll certainly be supporting his amendments. To take it in reverse order, I thought that there was a very interesting debate, and I've thought carefully about how I'm going to go on this. I am persuaded by Daniel Johnson's argument on this, particularly around simplicity and clarity. It's genuinely respectfully, cabinet secretary, but I don't think that it's helpful to talk about progressive amendments or not. Whilst I am going to support the Government's amendments on this, I don't think that they go far enough. I don't say that because I'm not in some way not progressive. I genuinely believe that the right thing to do on this is to go where my original amendment 73 was going, making it an automatic criminal offence to cut off or tamper with the tag. I will be bringing that forward again at stage 3, and I would urge the cabinet secretary to consider it very carefully at that stage. I will be supporting the cabinet secretary on the amendments 1, 2, 1 to 1, 2, 3, but I would like it on record. I don't think that it goes far enough, and I look forward to trying to push further at the next stage. Just addressing Daniel Johnson's amendment, he said at the outset that he thought it was important that unlawfully at large has real teeth, and I agree with that. Public confidence has been absolutely shaken in the home detention curfew provision. Adding time to a sentence where there has been a breach would, in my view, be a real deterrent, which would not be provided, as the cabinet secretary suggested, with a fine. For those reasons, I would be absolutely minded to support those amendments. Thank you for what has been very useful and helpful discussion. I suppose that there are a couple of points that we will pick up on the points that Liam Cartham made around some of the drafting. I haven't seen the lost site at all, but I'm sure that we can get a copy of it. We can have a look at some of those potential anomalies so that we will reflect on those points. Just go back to Daniel Johnson's amendments. I think that things are being done perhaps in the wrong order. The amendments that we are bringing forward do not prevent a custodial sentence being imposed by the courts because of an unlawfully at large offence. That is the discretion of the courts, which absolutely should be what your amendments are doing or are not allowing for any other alternative to necessarily be considered. For me, that is the wrong way around. There may be some reflection on the fact that the Conservative member suggests that he is being too punitive. I will leave that for him to reflect. On Liam Cartham's points, in previous sessions, I have articulated why the cutting off of the tag in itself, making that an offence in itself, is not wise. There are other licence conditions and we are creating a hierarchy here that is opposed to an unlawful at a large offence, which is the right way to go. I will also ask him to reflect on this issue about not labelling people when the next time I see a pressurise from him that talks about hard or soft justice. I will remind him of that point. Nonetheless— It is not on that point. Of course I will. I enjoyed the intervention. The point that we made was amusing. The point about the cutting off the tag, if I might go back to that. I appreciate that that is not what we are discussing right now. However, just after the last session's discussion, I seem to recall that the cabinet secretary was not there on my amendment 73 as much because he said that people could cut off the tag for legitimate reasons. I will not expect him to answer that now, but if he could come back to me with information on data as to how many tags have been cut off for reasons that are medical perhaps, the full range of reasons as to why tags are being cut off before we come to stage 3. I suspect that—I do not have the data in front of me, of course—I will look into it. I suspect that the number would be extraordinarily low. I suspect that that is the point that he is trying to make. However, the point of law is such that we have to factor in what would be the anomaly. That is why we have things like reasonable excuses, etc. I suspect that the number would be extraordinarily low. The second point that I was trying to make—I will not go into too much detail because it is not where we are debating—is that why would that particular breach of the condition, i.e. cutting off the tag, is that worse than, for example, somebody approaching a school when they are not meant to, is a breach of the license condition that they may have. If not, then why is the approaching of the school, which is a breach of the license condition, not an offence, but the cutting off of a tag? There are questions around there, but I will reflect on what Liam Kerr said already. He is going to bring this forward. I will reflect carefully once he lodges that amendment on what that amendment says, but I will just ask him to take those points on board and reflect on them before he brings it forward again. The question is amendment 121. Be a greeter. Are we all agreed? Yes. We are agreed. Amendment 122, in the name of the cabinet secretary, is already debated with amendment 121. Cabinet secretary, to move formally. Moved. Amendment 122A, in the name of Daniel Johnson, is already debated with amendment 121. Daniel Johnson, to move or not move. Move. The question is that amendment 122A be agreed to. Are we all agreed? No. We are not all agreed. Those in favour, please show. Those against? Three in favour, six against. Amendment 122A is not agreed. Call amendment 122B, in the name of Daniel Johnson, already debated with amendment 121. Daniel Johnson, to move or not move. Move. The question is amendment 122B be agreed. Are we all agreed? No. We are not all agreed. Those in favour, please show. Those against, please show. Three in favour, six against. Amendment 122B is not agreed. Call amendment 122C, in the name of Daniel Johnson, already debated with amendment 121. Daniel Johnson, to move or not move. Move. The question is amendment 122C be agreed to. Are we all agreed? No. We are not all agreed. Those in favour, please show. Those against, please show. Three in favour, six against. Amendment 122C is not agreed. Call amendment 122D, in the name of Daniel Johnson, already debated with amendment 121. Daniel Johnson, to move or not move. Move. The question is that amendment 122D be agreed to. Are we all agreed? No. We are not all agreed. Those in favour, please show. Those against. Three in favour, six against. Amendment 122D is not agreed. Cabinet Secretary to Bresser withdraw amendment 122D. Amendment 122C, in the name of Daniel Johnson, to move or not move. Move. Amendment 122C, in the name of Daniel Johnson, to move or not move. Move. The question is that amendment 122C be agreed to. Yes. Yes, we are all agreed. Call amendment 123C, in the name of the Cabinet Secretary, already debated with amendment 121. Cabinet Secretary to move formally. Move. The question is that amendment 123C be agreed to. Are we all agreed? Yes. We are all agreed. Call amendment 64, in the name of Daniel Johnson, grouped with amendment 65, 66, 67 and 129. Daniel Johnson, to move amendment 64 and speak to all amendments in the group. Thank you very much, convener. Can I reassure the cabinet secretary that we are very much on progressive and cuddly ground with this next set of amendments? I also say at the outset that these are largely, well, these are probing amendments that, while I move, I will not press because I do recognise that there is considerable technical difficulty with each of them. However, I think that what I am seeking to do is raise a fundamental issue and one that I think really this bill could have and should have addressed more fully. The management of offenders bill, as I understand it, is seeking to make provision to improve the process at the end of the time that someone spends in prison. That is a very important time. Fundamentally, I think that the criminal justice system will fail or succeed because it is at tha