Welcome to the Justice Committee's 20th meeting of 2017. We have apologies from Fulton MacGregor. Agenda item number one is the Declaration of Interest, and I welcome George Adam to the committee who is substituting for Fulton MacGregor. Do you have any relevant declarations of interest? No relevant declarations. Agenda item number two, subordinate legislation, is consideration of an affirmative instrument on the Criminal Justice Scotland Act 2016 consequential and transitional provisions regulations 2017 draft. I welcome the cabinet secretary for justice and his officials, David Dixon, criminal justice delivery unit, Kevin Gibson Solister, director of legal services with the Scottish Government. I refer members to paper one, which is not by the clart, and I invite the cabinet secretary to make a brief opening statement. Thank you, convener. It's timely that we are looking at these regulations today, as Scotland's first trafficking and exploitation strategy was laid before Parliament this morning. The strategy has been the result of extensive… so you're taking the trafficking regulations faster? The other one. The other one? Okay. My folder is back to front. Thank you, convener. I hope that it helps if I can briefly explain the purpose and effect of this instrument. As you know, the Criminal Justice Scotland Act 2016 introduces a number of reforms to our criminal justice system, including in respect of the procedure for cases being tried before a sheriff sitting with a jury. Those provisions are being commenced and implemented in stages between the end of May and the end of August this year. This instrument makes some minor and technical amendments to the provisions of the Criminal Procedure Scotland Act 1995, which cover sheriff and jury cases. Those amendments reflect the fact that, under the new system, the Crown will no longer indict accused persons to a first diet and a trial diet. Instead, the Crown will indict accused to a first diet only, and the Crown will appoint a trial when it is satisfied that the case has been prepared by both sides and will be ready to proceed to trial. The instrument will amend the 1995 act by removing reference to the Crown fixing a trial diet, as that will no longer be the case. In addition, this instrument contains some traditional provisions to ensure that the new procedures will function properly in cases that are indicted under the old system, but which will still be live when the new system is coming into force. That gives a very clear brief overview of the regulations and their context, and I am, of course, happy to answer any questions. Do members have any questions for the cabinet secretary? Just a comment that the regulation does seem to pick up some of the points that are made in the Crown Procurator Fiscal Inquiry report, and the committee is very encouraged with that. With that, we move to debate on the motion at agenda item 3. The motion will be moved with an opportunity for formal debate. If necessary, the motion is that 05624, that the Justice Committee recommends that the Criminal Justice Scotland Act 2016 consequential and transitional provisions regulations 2017 be approved. The question is therefore that motion 05624, in the name of Michael Matheson, be approved. Are we all agreed? Yes. Thank you. That concludes the consideration of the affirmative instrument. The committee's report will note and confirm the outcome of the debate. As this has been a non-contentious issue, members are content to delegate authority to me as convener to clear the final draft report. I now suspend briefly for a change of officials. Number 4 is consideration of the affirmative instrument on human trafficking in Exploitation Scotland 2015, relevant trafficking or exploitation offences in relevant UK orders regulations 2017 draft. I once again welcome the cabinet secretary for justice and his officials, Anna Donald, head of victims and witnesses unit, Susan Young, human trafficking policy officer and again Kevin Gibson, solicitor, directorate of legal services with the Scottish Government. I refer members to paper 2, which is a note by the clerk and paper 3, which is a briefing from Police Scotland. Does the cabinet secretary wish to make an opening statement? As I mentioned earlier, it is timely that we are looking at these regulations today as Scotland's first trafficking and exploitation strategy was laid before Parliament this morning. This strategy has been the result of extensive partnership working and sets out actions to identify and support victims, identify and disrupt perpetrators, address broader conditions that foster trafficking and exploitation. The regulations before you today focus on disrupting the activities of perpetrators and their purpose is to ensure that our legislative provision is as comprehensive as possible. The regulations relate to part 4 of the Human Trafficking and Exploitation Scotland Act 2015, which introduces to new court orders, namely trafficking and exploitation prevention orders, known as T-POs, and trafficking and exploitation risk orders, known as T-Ros. The committee will be aware that commencement regulations bringing part 4 into force have already been made, commencing all provisions relevant to T-POs by 30 June and all provisions relating to T-Ros on 31 October. The regulations before the committee today make further provisions in relation to part 4 in anticipation of that commencement. Section 161 of the act sets out a list of offences known as relevant trafficking and exploitation offences, upon which the operation of T-POs and T-Ros are based. Section 32 of the act deals with enforcement of T-POs and T-Ros, providing that it is an offence if a person who is subject to such an order does something prohibited by it or fails to do anything required of them by it. Section 33 of the act provides that ministers may specify that breaches of orders equivalent to T-POs and T-Ros, which may be made elsewhere in the UK, is an offence in Scotland under section 32. At the time of introduction of the Human Trafficking and Exploitation Scotland Bill, the final form and enforce date of most of those additional offences and orders was not known. Parliament then passing the Human Trafficking and Exploitation Scotland Act ensured that there was a method for updating the relevant lists in order that our act at section 16 and section 32 provided such provision. The regulations before you today, if approved, will do that, adding offences created by trafficking legislation elsewhere in the UK to the list of relevant trafficking and exploitation offences set out in section 161 and specifying core orders created by that legislation, breaches of which in Scotland will become an offence. Those UK offences and orders are equivalent to the offences and orders created by the Scottish Human Trafficking Act. The only exception to that is section 62 of the Sexual Offences Act 2003, which makes it an offence to commit another offence with the intention of committing a trafficking offence. We seek to add this to the list of offences because criminal conduct motivated by an intention to commit a trafficking offence demonstrates a clear risk that an individual may engage in conduct relating to trafficking in the future. The practical effect of adding those offences and orders to those already listed will mean that Scotland is an increasingly hostile place for traffickers. People either convicted or at risk of committing offences elsewhere in the UK, which correspond to the offences listed in our Scottish act, can be targeted. Further, traffickers who are subject to an order similar to our TIPO or Tiro imposed elsewhere in the UK who breach that order in Scotland will now be able to be prosecuted here for that. I strongly believe that the addition of equivalent offences and orders elsewhere in the UK to the list in our act demonstrates our commitment that Scotland is and will remain a hostile environment to trafficking. I am, of course, happy to answer any questions. Do members have any questions for the cabinet secretary, John Finnie? Good morning, cabinet secretary. Fully supportive of the provisions that is laid out here, can I ask two questions? I know that we have had discussions about this previously at the committee here. In relation to the Tiro's, this is an application by Police Scotland direct to the sheriff. One might expect that it would be the fiscal service that would make the approach to the sheriff. In other words, the police would report those circumstances and a warrant would be craved in that way. I am conscious that it says that it does not require a conviction for the police to make that approach. I am just wondering about—clearly, there are thresholds of evidence. Is this—we have not enough to go ahead with a prosecution, so we will just go for a Tiro. What reassurance can you give around that? Can you say what the avenue of redress for anyone who is the subject of one of these would be? Is there an appeal system, and who would that be, too, please? For the Tiro's, there is no requirement for a conviction, although within the legislation there is a range of requirements that have to be met. The court must give consideration to those when it receives an application. The reason that the provision has been made for chief constables to apply for this is on the basis that those are individuals who, at this particular point, may not have been referred to the Procurator Fiscal to the Crown Office for a prosecution to be taken forward, but there may be a course of conduct or activity that the police have concerns about that may, if some indication is individual, may be involved in trafficking of individuals. It gives them the opportunity to then make an application to the court. There is a need for the court to be satisfied that the adult whom the order is sought against is acted in a way that means that there is a risk that they would commit a relevant offence within the Human Trafficking and Exploitation Act, and that must be considered by the court at the time. There is also the opportunity for individuals to then challenge that in court through the normal due process in which that would be taken forward. If a Tiro is granted, there is the opportunity for the individual accused to then take that matter back to the court to have it reviewed. There is, of course, for the chief constable to do that as well if that is deemed necessary. The timeframe for the way in which a Tiro applies is also different from that of a TIPO on the basis that no conviction has been secured at that point. There is a fixed period of at least two years for a Tiro, whereas for a TIPO it is a minimum period of five years. The timeframe is different, but there is also a set-out criteria that needs to be considered by the court in determining an application for a Tiro. Would you anticipate that Police Scotland would be lasing with the Crown regarding that, because it may well be that there is an insufficient evidence for a prosecution, but that is appropriate? I am just thinking of the process of the police to link directly with the courts bypassing Crown. That would be of concern if that was to become a process. The likelihood is that those are going to be individuals who will be on in the police's radar. By the nature of the activity that they have probably been involved in, I would expect their prosecution services to be aware of them as well. However, it could be a set of circumstances that there is an insufficient evidence to justify a conviction at that particular point, but there are a range of activities that would raise concerns that they would believe could result in an offence being committed and that a Tiro would be appropriate. It provides them with that additional measure to take action against the individual who may be involved in activity that could lead to traffic. You will know from your own experiences that identifying those individuals and the nature of the way in which they are operating can be very difficult and complex. John Finnie's line of questioning is certainly what lept out at me from the policy note that the oversight of that would need to be carefully managed. Is there a process by which the Government intends to look at the operation of Tiro's and whether further clarification might be necessary around the criteria or whether the operation would be kept under review? What we will do is look at how the Tiro's and the Tiro's are actually operating. We will do that by lasing with the Crown Office and Procurate Fiscal Service and with Police Scotland and the Scottish Court and Tribunal Service to evaluate how they are operating and whether they are being in a purpose for which they are intended and to look at whether there is any need for further alteration to the existing arrangements that we have in place for them going forward. We will certainly keep them under review. Will that review incorporate any evidence or input from other bodies outwith the Court and Procurate Fiscal Service? I am thinking of human rights commission or bodies such as that, who I am sure will be keeping a weather eye on this over the coming years. We are not planning any formal review process given the regulations for the Tiro's and the Tiro's have already been introduced and this is just now adding some relevant factors to it. There are no plans for a formal review of such, but clearly when you are introducing any new provisions orders particularly like this, you want to continue to evaluate how effective they are proving to be. We will certainly be doing that. If there were any issues of concerns that were being raised by the Scottish Human Rights Commission or anything like that, that would of course be considered. However, you may call quite a lot of those issues were considered at a time when we will deal with the Human Trafficking Act before Parliament and at that time they were viewed as being proportionate and reasonable. We will also do those. We will also engage with organisations such as Migrant Help and Tara who are involved in working in that particular field around how not just the orders are operating but how the legislation and the holes are operating and they have been absolutely key to the strategy that has been published today to make sure that we are making the country's hostiles as we can for those who want to peddle in the misery of human trafficking. No further questions from members. We move to agenda item number five, the burden at legislation, the 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 comment on it. The motion will be moved with an opportunity for formal debate if necessary. The motion is 05625 that the Justice Committee recommends that Human Trafficking and Exploitation Scotland Act 2015 relevant trafficking or exploitation offences and relevant UK orders regulations 2017 draft be approved. Cabinet Secretary, could you move the motion? Do members have anything further to contribute? In that case, I put the question that the motion 05625 in the name of Mike Matheson be approved. Are we all agreed? That concludes the consideration of the affirmative instrument. The committee's report will note and confirm the outcome of the debate. Are members content to delegate authority to me's convener to clear the final draft of the report? Thank you. I suspend briefly. Agenda item six is our second evidence session on the Domestic Review of Scotland Bill. I refer members to paper four, which is not by the clerk, and paper five and six, which are spice briefing papers. It is my pleasure to welcome Claire Connolly from the Faculty of Advocates, Gracia Robertson, member of the criminal law committee of the Law Society of Scotland, Andrew Teco, lecturer in law Glasgow Caledonian University and Lindsay McPhee, past president of the Glasgow Bar Association. You are all very welcome. I thank you in particular for your written submissions, which are very helpful for the committee in scrutinising this bill. We now move to questions from members. I perhaps start with the Faculty of Advocates submission. Particularly when we talk about the criminalisation of behaviours such as those listed in section 2.3, which requires to be contextualised in the legislation to achieve its aim. In particular, I wondered whether you could tease out the distinction between common campton, violence and coercive control—something that you said really needed to be looked at. There is a substantial amount of international research on the issue of domestic abuse. Over the years and in recent years, an understanding has developed that distinguishes violence or conflict that would arise within a couple from domestic abuse. Common couple violence would be defined as individuals that would intimately use violence, aggressive language, where a dispute arises between them, but it is not underpinned by an on-going coercive control. The distinction between those two things drawing out the distinction has been very much welcomed. Some people, unfortunately, might resolve interpersonal disputes using violence, but it is different from the underpinning coercive control that is the main factor of domestic abuse. As you know, in the past, historically, people would talk about domestic abuse as wife battering when it was originally spoken about in the 1970s. Gradually, as time has gone on, the understanding of what domestic abuse or domestic violence used to be called in Scotland is much wider than physical violence being used by one partner against another. The prevalent features would be physical violence and sexual violence, but they might be episodic, but the thing that underpins the relationship is a desire to control the other partner. The coercive control becomes extremely important, particularly when we look at when victims of domestic abuse are at the highest risk of homicide, because that occurs at the point of either leaving the relationship or having left. In terms of what our understanding was in the 1970s, that domestic violence was about violence between partners to resolve disputes between them, we now understand that coercive control is the main feature of domestic abuse. That is why, for example, homicide risk heightens when the relationship is brought to the end, because the controlling partner cannot handle the fact that the relationship is brought to the end. Our concern is that some of the behaviours that are listed could easily occur outwith a relationship that is underpinned by coercive control. Without the context of coercive control being identified accurately, it might become difficult to criminalise the behaviours that the bill seeks to criminalise. It might also be difficult to maintain the public confidence in what the Parliament is trying to achieve. Is that linked to a course of behaviour? The course of behaviour certainly goes some way in identifying our concern. It certainly does, because the normal lens of the criminal law is a narrow lens, it is single incident focused, and the bill has gone some way to try to contextualise by saying that it is a course of behaviour. I think that we very much realise that the point that I have just made is really difficult to legislate on. One of the things that we recommend in our latest response to you is that the bill to be successful must be accompanied by a public and professional education programme. I think that that is the best way to achieve a recognition of the distinction that I am referring to. I personally do not think that it is actually possible to legislate for that. In an ideal world, it would be great if we could legislate for it, but, practically speaking, I am not sure that we can. Any other comments from other panel members? I would just seek to, on behalf of the Law Society, agree with those comments. I think that that is mirrored to some extent in the response that you receive from the Law Society. The lack of clarity is mentioned, and it is in part due to the points that Claire has raised, that there is no distinction between situations that ideally would not wish to be criminalised and situations in which the criminal law should intervene. That is the difficulty. We see difficulties every day regarding the domestic abuse issues in the existing legislation that we have.  We are in the courts day and daily, and we see difficulties regarding legislation seeking to protect innocent individuals in a domestic setting. There are difficulties being experienced even now with regard to witnesses not attending, witnesses perhaps attending court and not speaking to their original statement, which seems to support the allegation and breaches of special bail conditions. Those are all situations that are difficulties in the current legislation, and further investigation into that might shed some light on the whole dynamic of what is going on with regard to those cases and those other cases that Claire refers to, which are just people who resort to violent outbursts, because that is the only way that they can respond to those situations. I certainly would not disagree with any that Claire has said. Anyone else? I think that one of the concerns that the GBA had raised was that if the new legislation, as is proposed, is passed, the very fact that the prosecutors will then be faced with a new set of legislation, I think that the GBA's experience is that there has been a tendency that when new legislation is introduced, understandably, the Crown are very keen to utilise that legislation. I think that there are real difficulties for prosecution of this type of offence and issues of proportionality and who is going to apply the reasonable person test. I think that I noticed in one of the submissions that you had from the Chief of the Scottish Police Federation, I think that perhaps in a later evidence session you might explore that. I think that he has expressed concerns about the police being in the position of being the reasonable person. I think that we feel that there is a lot of issues and complications, even in the current domestic abuse provisions, which I think could be closely looked at before we even tackle this very complicated area of domestic abuse. There is a lot raised in those opening responses, but I think that the course of contact and the time and what is included in that are things that other members will want to tease out, which perhaps points more to identifying that as a very distinct offence. Mary. Thank you, convener, and good morning. I wanted to pick up on the issue of reasonable behaviour. I am particularly looking, Mr Tickle, at your submission, where you talk about the reasonable person test. You say that it is not a helpful approach. The bill must be able to discriminate between degrees of wrongful behaviour, not to distinguish wrongful behaviour from innocuous behaviour. I wonder if you could perhaps expand on those comments and give us a bit more detail around what you think should be in the bill to completely clarify that. Thank you very much for the question. I suppose that at the risk of introducing the thick of it this early on, my surname is pronounced tekel, so everyone gets to call me Tickle once. In terms of the bill, I think that you have a difficult task in front of you in the sense that you are discriminating between a wide range of behaviour. The abusive behaviour provision is very broad, and I think that it has to be in the sense that we are covering a range of types of behaviour that, in one context, will be innocuous and another will be profoundly problematic. At the Crown, the Government has argued that there is a range of checks on that very broad definition of abusive behaviour, one of which is the reasonableness test, which is a defence that the accused person can offer. I am not sure that defining criminal laws in terms of a defence primarily is particularly reassuring for the citizen, because then the burden, to some extent, of proving that falls upon them. As far as I am concerned, the key thing is to ensure that the thresholds for criminalisation are sufficiently high. In my submission, I directed to the English legislation, which provides that the harm that is caused to the complainer would have to be of sufficient severity to have a significant impact on the day-to-day life. There is nothing like that in this bill as presently before you, which would allow us to discriminate between more and less serious behaviour. As far as I am concerned, I think that that is the best way to ensure that this catches the right kind of cases and criminalises those, while ensuring that people who are behaving badly, who are behaving not very pleasantly towards their partners, are nonetheless outside the scope of the criminal law, where their bad behaviour is not likely to cause significant harm to the complainer. That is the approach in England. I think that it would be very sensible to have that approach in Scotland as well. Would the definition of significant impact have to be detailed? Where would you start with significant impact and where would you end? I am sure that there would be many, many different views on what significant impact is. Can you say the same thing about reasonableness as well? In the sense, would you have to define it exhaustively? Well, section 76 of the Serious Crime Act in England does not do so. It simply says that it has to be significant or substantial harm or distress. In the sense, that is to some extent in the eye of the beholder, but this is a judgment about wrongfulness, which is in context. You are going to have to look at a pattern of behaviour. I am going to allow the judge, in most cases, in summary cases, or a judge, a jury case to decide in those cases. I do not think that you can be exhaustively precise in that kind of legislation. It is a powerful difficulty to define those things. All you can do is ensure that the decision maker has an eye to certain principles, and I would suggest that one of the principles that should be taken into account is the seriousness of the harm, not whether it might give rise to distress. That is the test that is currently in this legislation, distress. That seems to me a very, very low bar for criminalisation. However, would the police be the first people who would have to make that judgment on significant impact? If the police are called to a property where something has taken place, will they have to make the initial assessment of whether or not significant impact has occurred? Although, equally under the current proposals, they would have to decide whether the behaviour or course of behaviour that is alleged to have taken place was likely to have one of the listed psychological effects on the complainer. That does not seem to me a particularly straightforward task either in that context. I am not sure that it makes a qualitatively more difficult thing for police officers to do to make them focus on the seriousness of the harm, as opposed to simply considering whether harm has arisen or not. The only thing that I would say is that the suggestion of the police entering into a scenario and having to respond to that is probably, I would imagine, less likely in this situation, because the aim of the bill is purportedly to deal with on-going issues over a period of time. It is supposed to be something not like the single incident, the dramatic incident, the breach of the peace or the assault scenario, which is more likely to be covered by police officers attending at a scene and having to assess the situation. One of the points that we make is the difficulty of gathering evidence in relation to that. I would imagine that it would be quite unusual for police officers to suddenly appear on the scene and be able to form a view regarding that kind of behaviour at that moment in time. Presumably, what is envisaged is a situation in which there has been a continuous course of abusive behaviour. I think that there is real issues with trying to gather evidence, because people who have experienced this are perhaps very people who are going to be extremely reluctant to come forward. I am just wondering when the trigger will be, is that when another party reports it to the police but, meanwhile, the two parties are still living together? It is not like a situation now where there is a single episode, the police arrive, and if there is a sufficiency of evidence, they immediately detain or arrest the person and then they are inevitably kept in custody overnight or over the weekend. However, it is hard to envisage a situation where they are going to be aware immediately that coercive control is on-going, so I suppose that they will be very difficult. I think that we described marginal decisions for prosecutors and they have very specialist training, but I think that the GBA indicated that we were quite concerned about what the guidelines would be and perhaps would welcome some input from those who are representing the accused as well, if that is feasible. Thank you. We certainly were going to get evidence from people. It always seemed to be at the point when they left and it was reflecting back, and there was then quite a substantial body of evidence built up over that time, but that seemed to be the trigger time. Stewart, I am just taking everybody in order that they have indicated. Thank you very much, convener. I am just going to develop this further and, in particular, pick up Mr Tickell's comments that he makes at Paragraph 4 in his submission, where he says that entering into any relationship inevitably restricts the freedom of action of both parties. In a sense, that goes to the heart of some of the decision-making that is that surrender of power, voluntary or involuntary. Is that really where you are trying to take us, Mr Tickell? Is that going to be, in your view, a sensible way for the criminal justice system to be thinking about things? Is it voluntary or involuntary? Of course, relationships are multifaceted. They change over time. They are different in different instances. The degree of surrender or trading in power in exchange for benefit will be quite different in every household in the country. Does that go to the heart of some of the difficulty? I think that you could argue that it does. Certainly, it is worth reflecting on the fact that the definitions of abusive behaviours in the bill run from a spectrum. There are some at the high end of the spectrum degrading behaviour, for example, in which it is hard to see any healthy relationship participating in. Then there is possibly a lower end of the spectrum monitoring-type behaviours, making people, to some extent, dependent on you, that even the Scottish Government recognises, potentially might capture types of behaviour that are perfectly commonplace, sometimes benign, sometimes not benign. I do not see any way of capturing the broad gamut of behaviour that this bill aspires to capture without having a broad definition of what abusive behaviour might look like. My core submission is that, in order to take that on to an appropriate level of criminalisation, we should have additional tests of sufficient height, sufficient severity, and that would be my principal submission. I think that, unlike the law society, given the range of behaviours that domestic abuse covers and coercive and controlling behaviours covers, from doing and saying things to not doing things and not doing saying things, I do not see how you have a straightforward definition, a clear definition of abuse. I think that the committee should really think about the thresholds. Are they sufficiently high in the bill as it stands? I would suggest that they are not. But we come to the heart of it. Do we need a definition in the legislation or should we simply leave it to the courts? I am not sure that anyone who is here in the room was here when we did debate the issue around cartilage in land reform in 2002 or thereabouts, where, ultimately, we concluded after many months of deliberation that you couldn't define it. You had to let the courts look at the individual circumstances and specifics of a case. Are we back in that territory again? That is not just simply directed at Mr Tickell but to other panel members. To Sarely are, in the sense that I am not suggesting by any manner of means that you try and exhaustively define what abusive behaviour is. It is worth stressing, though, that is this Parliament's function, it is your democratic legitimacy to make the laws. The Procurator Fiscal is not elected by anybody. I think that it would be inappropriate to insist on a very broad definition of the crime, which gives substantial discretion to prosecutors. It is an abrogation, I would suggest, of your functions. It also raises fundamental questions about European human rights compliance. That this bill as a whole is a significant intervention in the private life of citizens of this country. Under the European Convention on Human Rights, any intervention in people's private life has to be sufficiently clear, pursue legitimate aim and be proportionate. For many cases, that will not be a problem, but perhaps the named person's case in the UK Supreme Court should remind us of the importance of having laws that are sufficiently clear such that the citizen can understand them. Briefly, you said clear. Do you mean certain? I suppose that the lawyer is meant to quibble. What distinction do you see between the two? Well, clear is understandable. Certain is delivering a certain legal outcome, and I think that around the different things. I see Clare Cornwallay, who might care to come in, nodding at that distinction. The term that I would use would be legal certainty. To be convention compliant, a law has to be that. Not only for that reason, if the purpose—it is a big step, the Scottish Parliament has made huge inroads into improving our legal and social response to domestic abuse, since it was created. The Protection from Abuse Act was one of the first pieces of parliamentary legislation passed in this building. If what we are trying to achieve is both protection and also to empower individuals to seek legal protection, that it was not previously available to them because of the limited domestic abuse behaviours that were covered by the pre-existing criminal law, then legal certainty is very important both in terms of making law that is enforceable, convention compliant, but also empowering individuals and giving them the knowledge that perhaps the lifestyle that they have led, the behaviours that they have endured or suffered are not condoned by law. In fact, they are criminalised by law, but it is an extremely difficult task that you have before you, as I said in my previous submission to you. By no means am I suggesting that this is easy, but there has to be some guidance. A general term being used without offering any definition or examples is problematic, but I would come back to achieve what I believe they aim to be, context is everything. You used the word guidance. Did you use that in a specific legal sense to say that there should be extra legal writings that will inform the courts and the procurators' fiscal decisions when they are making their decisions, or are you saying that it should all be incorporated into the primary legislation and supporting secondary? I do not think that it probably can, all being incorporated into the legislation, but I think that, as we have suggested in the Faculty of Advocates response, that an education campaign for the public, for front-line professionals that are involved in enforcing the legislation that individuals would have to have received some sort of training. It is not an abstract, it is something that is well understood amongst particular agencies such as Women's Aid, Women's Support Project. As I say, it is internationally evidenced in research and domestic abuse. I think that the legislation to be fully effective has to be backed up by an improved general understanding of the importance of context of behaviours. I might come in there because I had to echo Claire's comments that I am appearing daily in the domestic abuse court and the response from the Scottish Parliament in improving awareness and understanding the dynamics of domestic abuse and the provisions of vulnerable witnesses and assist and specialised courts and specialised training for sheriffs is all hugely welcome. I wonder whether we are at the stage yet where we should be assessing, for example, the impact of the abusive behaviour in sexual harm Scotland act, which has just been introduced, and really it is only in the last three to four weeks, maybe two to three weeks, that I have seen domestic aggravations appearing on the face of complaints. One of the provisions that I am just reading from the act is that the subsection applies where it is libled in an indictment or specified in a complaint that an offence is aggravated by involving abuse of the partner or ex-partner. The offence is so aggravated if the person intends to cause the partner or ex-partner to suffer physical or psychological harm, or in the case only of an offence committed against the partner or ex-partner, the person is reckless as to whether or not it does cause physical or psychological harm. When we are talking about contextualisation of offences, there is provision at the moment, or has just been enacted for the sheriffs to give cognisance to whether or not the motivation behind this contravention of section 38 or the assault is, in fact, to perpetrate physical or psychological harm. I think that there are many provisions at the moment that are working well and perhaps could be refined more before moving to yet another piece of legislation, which I think that everybody agrees can be quite problematic. We will cover the definition of psychological harm, but the coercion aspect you may assume is subsumed in that. Given the discussion that we have had this morning about coercion itself, I think that perhaps that may be where the gap is. I will bring out the members in now. Rona Cymru. Good morning. I would like to ask you about the impact of the bill in relation to children, and in particular the concerns that Glasgow Bar and the Law Society have raised around clarification and statutory aggravation. Can you expand on that and what your concerns are? I think that, from the Law Society's perspective, they have just produced an example. It is the idea of the law being clear in its terms so that everyone can understand it, because it is a criminal law and people should not inadvertently contravene the criminal law. It has to be quite clear what kind of criminality this bill is seeking to address and to attack and, hopefully, to form a solution to. One of the examples that my committee came up with was the reference to the fact that the acknowledgement that sometimes children can be used as a weapon by one or other party as a way of hurting, as a way of controlling someone else's behaviour, the use of the children. Children, above all, as eminently vulnerable people, must be protected. There are other protective measures. There are other child welfare measures that can come into a scenario where children are being adversely affected by the behaviour of perhaps one of the partners and perhaps both of the partners. Both of the partners could be at fault here. There are protective measures and I think that it should always be ensured that those are properly in place and working well to protect the children, because that is the front line. That does not require a criminal standard of proof. That is a civil standard. People can become involved in helping children in that scenario. That domestic scenario, without worrying about whether it comes up to a required standard, which is quite high for criminal matters. However, the definition in the act is that children are at anyone under the age of 18. We were just chatting about that in the committee. We were saying, what if the couple are 17? What if those are involved? What if their friends are 17? You could have a scenario where you have an aggravation because a couple's friends are in the house and that aggravates it because a child is present during an altercation. We assumed that that was not the aim of the bill. It was to do with younger children, but that is not expressed in the act. You could have a scenario where you have a 17-year-old coming in and someone is not being given money to go out or to do anything at all on the periphery of that. However, then being captured in that aggravation, the terms of that, is that really what Parliament was looking at? Were people being caught up by chance in this aggravation of involving children? As criminal lawyers, we know the shortcomings of the criminal justice system. It is quite a rigid system, as I was saying to colleagues. It can go for the extremes of behaviour, but it is not good with the subtleties of behaviour. That subtle behaviour can have a bad impact on children. The civil remedies, the involvement of social work and involvement in the children's referral system, given that it does not require such a high standard of proof, that is probably the front-line safeguard that I would say for children. My hope would be that that would always be a rigorous, well-resourced, well-trained professionals dealing with that side of it, so that they can enter into and protect children in that environment, even in a scenario in which they might not be able to get a criminal conviction against anyone. Anyone else would like to comment? I think that the DBA addressed that point that Grazia has mentioned. I am sure that the chairman and members of the committee will have had submissions from the children's reporter, but my understanding is that there are fairly rigorous provisions at the moment. As I mentioned at section 672f under the Children's Hearing Scotland Act, it can be a ground of referral without a criminal conviction. It only has to be established in the balance of probabilities that the child has been in a house in which domestic abuse has occurred. I understand that there can be a situation for example where there has been a partner in one relationship and there has been recorded instance of domestic abuse, not necessarily convictions, and then that partner leaves and forms a relationship with a new family. The fact that there has been previous recorded instance will form an automatic ground of referral. I think that there are fairly strong provisions at the moment, although obviously the children's reporter may feel that there is a gap in their evidence to the committee, it might feel that it is not stringent enough. Some of the children's organisations had said in their submissions that the term of the child being in the house was not strong enough. Did the child have to be in the room or were they listening from the bedroom? Could they hear it? Is that the specific clarification that you would like to see? I think that clarification is always welcome and it probably does not answer your question, but I think that what we have observed is that, even without specific legislation, that is something that a prosecutor will always draw to the court's attention and the sheriffs certainly will take very strict view of whether there were children in the house, whether they heard it or were even in the same room. The fact that an instance has occurred in the presence of a child would always influence the sheriff's disposal. Sorry to go back to your point about the age of 17. Do you advocate putting a limit on the age or a natural threshold? I am here on behalf of the Law Society in our discussions and we did not really go into suggestions as to how the bill could be altered. We were really just looking at it from the view of perceived difficulties and problems and anomalies with regard to that. The other thing being that children being present in the house would presumably have to be some way of establishing that the perpetrator of the crime knew that the children were there. It would be a bit invidious to have an aggravation that conceivably could be an increased punishment for someone without them actually being aware of that scenario. Regard has to be had to how that would be presented in a court, criminal court setting, in the course of a criminal trial. What evidence would be led to establish the aggravation? I suppose that we were just taking the pragmatic view. The protection of children in that scenario is paramount. How best do you protect children? In our view, the front line, social work involvement and children's reverberation are the ones that would really be best suited to deal with those scenarios rather than an aggravation in the form that is there. The substantial research that is shown that children who hear domestic abuse are often more adversely affected by it than children who see domestic abuse. What is evidenced is that those children who hear but do not become much more distressed because they cannot see how badly their parents are being injured, etc. To draw a distinction between being in the same room or not in the same room is not supported by the evidence if we are trying to control the distress and exposure of children. Rona Grant touched on a couple of the questions that I was going to raise because I think that she raises a couple of really important points there. I know that we have talked about another legislation that we have looked at, the definition of a child, and you have just answered that question there as well. It was also some of the evidence that I found really interesting was from Children First and the NSPCC, where they talked about the aggravator go, it should go further, to recognise that where children are living in a domestic abuse situation per se, they are inevitably victims of that abuse regardless of whether they see it or hear it. It is going to have an impact on them and they list all the studies that have taken place to look at that as well. Would that be recognised in the legislation, that wider impact that they are talking about as well? As drafted, that the aggravation allows that to be taken account of. The information required as to whether it is appropriate to have the aggravation issues like knowledge of the children being present, et cetera, are going to be before the person who is marking the papers and the person who is prosecuting the case. I think that there is only so much detail provision for that aggravation that can be contained within the bill itself, the act itself. As drafted, I think that it allows a flexibility. I totally agree with my colleagues in terms of the civil provisions that are there, but I would anticipate that those agencies that represented children would have been keen to have an aggravation attached to the criminal offence where children were present. The research results of the impact on children would support that, because they are perhaps not direct but consistent secondary victims of domestic abuse when it is going on in a household. The other area that I would like to look at is the requirement to consider non-harassment orders and to get your views on that. I know that that was widely agreed to in a lot of the submissions that we received, but it was just the fact that, so far, the evidence that we have seen of non-harassment orders seems that they are not issued all that frequently. Just to get your opinions on that, because a lot of people at the moment are having to resort to the civil process to get action in that way. When I was an academic before I went back into practice and went to the bar and with Kate Cavanagh and Jane Schooler, we evaluated the Protection from Abuse Scotland Act and, as part of that, we looked at access to and breach of civil protection orders. It became quite clear that the provisions that existed at that time were that, before a prosecutor could move to get a non-harassment order, they had to be able to show a course of conduct and behaviour. The combination of the narrow lens of the criminal law was prosecuting one incident generally of domestic abuse. Therefore, there was not a course of conduct available, and therefore the prosecutor could not move for a non-harassment order. When I later worked with Rhoda Grant on the Domestic Abuse Scotland Act, we have suggested and you removed the requirement for that course of conduct. The reason why I believe that a non-harassment order being available and, in fact, actively a compulsory measure to make sentences consider granting a non-harassment order is that women routinely cannot secure civil protection orders because of the contribution levels that are required under civil legal aid. While a person who perpetrates domestic abuse and is charged and goes through court more easily access legal aid, someone who is seeking protection may not. Given that, in what we know about the trigger for increased violence and the increased risk of homicide where a person has left a relationship or is trying to leave and is taking formal steps to seek protection, it becomes extremely important that we join up our legal response to that in both criminalising behaviours but also, at the same time, offering the necessary protection. I might come in on that point as well. I have discussed the issue of non-harassment orders previously. Although clearly they can be a very effective measure, one of the issues that the Bar Association raised in the paper is how it is actually going to operate in practice. At the moment, there can be many situations where people appear from custody, plead guilty immediately. I think that it is envisaged as part of the inquiry and investigation in which the crown and assist have carried out that they will seek the views of the complainer on whether or not they wish a non-harassment order. Of course, there can be a situation where those views have been sought on the Friday night. The accused appears from court on the Monday, or appears from custody, and the Monday pleads guilty. If the view at that point is that a non-harassment order is welcome, should that be put in place immediately without any further inquiry? I think that, often, the views of the complainer are the most persuasive issue. It is very problematic when a non-harassment order is made. We put in our response at the moment, as far as you can see, that there is no provision for the recipient of the non-harassment order to ask for a variation of it. We have encountered numerous situations where we are receiving letters from solicitors acting on behalf of the partner who has been the victim of domestic abuse saying that they wish the non-harassment order to be removed. However, what happens is that there is no provision in the Criminal Procedure Act for them to make an application. It has to be done by either the prosecutor or the solicitor acting on behalf of the accused person. Obviously, sheriffs will be very considered in their approach, but I just feel that there could be issues arising when there has not been sufficient time for the views of the complainer to be sought after a period of time. Clearly, if there is a record of domestic abuse and it is immediately apparent that one is appropriate or that the complainer is seeking one, quite often the point at which the application is made is after a criminal justice social work report has been prepared, and the prosecutor and the sheriff have time, as does the accused, to reflect on whether or not it is appropriate. However, I worry that, on every occasion, if a sheriff is going to be faced with the decision of, should I make a non-harassment order, that there might be working on information that is very new without the complainer even having a chance to consider whether or not this is something that he or she does want going forward. Once they are in place, they are obviously very strictly enforced. However, it is more of a practical application, but it is also clear that it is right that a domestic abuse interdict can be achieved under the Domestic Abuse Scotland Act 2011. Again, there does not have to be a course of conduct. One incident is sufficient, but, again, there are issues of funding for that. Just in relation to some of the evidence that we had from some of the children's charities where they asked that they would welcome an amendment to the bill to include a mandatory duty on the court to consider whether to impose a non-harassment order that includes children in all cases where the statutory aggravation in relation to a child is applied and to get your views on that. An evidence that we received from the NSPCC said that they tear from the bill team that there had been at least one domestic abuse case in Scotland where a court had made a non-harassment order covering children, but that was subsequently overturned in a civil child contact case. They were of the view that it must be in the authority of the court within that legislative instrument to consider making a non-harassment order in respect of children and that, when that order is made, that that should be recognised by the civil courts too. My personal impression is that there is an issue with non-harassment orders when they are granted, when they are not granted, how they are implemented, how they are enforced. When I have spoken with the agencies who are very keen to have the provision in the bill, their main complaint appears to be that there are not enough orders being made and when they are made they are not effective enough. My initial view as a criminal lawyer is that we can look at what is happening at the moment. Is there an issue regarding those orders rather than seeking to just incorporate them in another act and perhaps more offences for this is coming to light? I wonder if there is an underlying problem in how those orders are being implemented and people feel that there are not enough of them and, when they are there, they do not seem to find them effective. If there is some sort of issue with the order itself, I do not know that the bill will necessarily assist matters. Does anybody else like to comment on that? I think that the question of the effectiveness of civil protection orders is quite a complex one. In terms of what do we mean by that, do we mean that effective in stopping an abuser being abusive, or are they effective in empowering the recipient of the order? Again, there is substantial international research that shows that the main benefit from civil protection orders is empowering the recipient because a formal external process has said that this behaviour is wrong and it should not happen again. It is predominantly women are reporting that that is one of the big benefits for them. Ultimately, of course, if we take the absolute extreme, the worst extreme situation, if you have an estranged partner who, as a result of having lost control, is going to carry out an act of homicide, a non-harassment order is not going to change that. Let us be honest, it is not going to change that extreme violence. In terms of effectiveness, the difficulty that we found when we spoke to interviewed women when they said, I had been to court and then I went to try and get a protection order, but I could not afford to pay my contribution to civil legal aid because now I am bringing up the kids on my own and I have no financial support from my estranged partner. Situations like that are very difficult to be able to justify to someone as to why they cannot get protection under the law. Undoubtedly, there will be mixed views on how effective, non-harassment orders, certainly what we were told when people did have them and they were breached police officers by some individuals that police officers would attend and say, well, you do not have corroboration for the event that breached the order. So a bit of misunderstanding, this was some time ago. But again, I think that if orders are not being granted, if the processions are not being granted when they should be granted and they are not being responded to appropriately when they are breached, that is about a training issue rather than something that requires to be legislated. In terms of your original question, if the aggravation in relation to the child is going to be there, then for the same reasons as I have said for whoever the victim of the domestic abuse is, then if children are going to be viewed and regarded as victims, then they should also be afforded the protection of a non-harassment order. More specifically, again, when we heard evidence from victims of coercive behaviour, then the woman that I said non-harassment orders were pretty useless because if there were children involved, then there would be contact orders and that brought them inevitably in contact again with the abusers. So I think that perhaps Ms Robertson is right, it is an issue that is very complex and it needs further investigation probably outside the bill to see just how those are operating in practice. Liam Kerr. Good morning. I follow up firstly on the issue of children, colleagues have already covered probably the principal issues in relation to the bill, but one concern that has been raised is that the bill does not take the opportunity to acknowledge that within the wider context of violence in a domestic setting it can be perpetrated by children in relation to parents or grandparents as elder abuse is probably generically called. Is there a justification as far as you are concerned for excluding that type of abuse in a domestic setting because it is different from the sort of abuse that we have been talking about this morning? Would it complicate the way in which the act would be implemented? There is a distinction between domestic abuse amongst partners who are either in or have had an intimate relationship and violence perpetrated by children or children against parents or elder abuse. It wouldn't necessarily be violence, I think that elder abuse presumably can cover controlling behaviour and all the rest of it in terms of serious abuse and distress that is referred to in relation to the abuse carried out between partners who have an intimate relationship. I am just wondering whether or not by not including that type of elder abuse in this act we are missing a trick or would that simply make the implementation of the provisions in this act more difficult because that type of abuse is seen as very different from the abuse between partners who have an intimate relationship? I understood that one of the reasons for the Bill is that the national definition of domestic abuse in Scotland includes a lot of behaviours that are not yet criminalised. I am going to ask you, as my mind is turning in terms of elder abuse, for example, misusing money, etc. Those are covered by the existing criminal law, so I think that they are two different issues, they are not the same issue. I do not know whether you can assist me in identifying specific behaviours that would arise in respect of elder abuse that are not already covered by the criminal law in the same way that we have in respect of intimate relationships and domestic abuse? Primarily because the concern came through in the evidence that we received, and among the broad consultation that has taken place on the provisions, I think that the overwhelming majority supported a narrow focus on it, and it may well be precisely for the reasons that you have suggested. However, if we are opening up the scope of that in terms of controlling behaviour, I am not sure why that would be covered in terms of elder abuse but is not in relation to the provisions on abuse that currently exist between partners with an intimate relationship. I suppose that one example of that, imagine that you had a perhaps maiden aunts, I used to have a couple of them that lived together, they were quite happy relationship together, but they would not be covered by this legislation if one of them was systematically coercing, controlling and otherwise abusing the other outside the scope of the criminal law. That is what you are being asked to do in this legislation, perhaps you have in your mind as well the English definition which is broader in general, covering family members, not just engaging children but perhaps cousins who live with you. I suppose that the fundamental question is this, if coercive and controlling abusive behaviour is worth criminalising in relationships of an intimate character, why is it not worth criminalising in other contexts as well? I think that you had Scottish Government civil servants here who said that they felt that it was appropriate that domestic abuse is a distinct category of wrong. Speaking purely personally, I am not really sure why, in the sense of if abuse is very serious, but it happens between people who have happened to live together but do not have a sexual or romantic relationship. I am not sure why that should be categorically different and not criminalised by the criminal law whereas abuse within a domestic partnership should be. Other examples at the moment where the nature of the relationship is impacting on the way in which courts are dealing with cases that come before them. That is a sys at all, but the law society was considering the issue of why it was specifically in intimate partner relationships. We came to the view that on a spirit of equality the English approach was really to be preferred to the Scottish approach of narrowing the focus because, as Andrew has said, if the coercive and controlling behaviour is wrong and is to be criminalised, it should be criminalised equally in domestic settings where it appears. Presumably, you have the same difficulties of gathering evidence when it is a close domestic relationship as you have in an intimate partnership or whatever. There becomes a distinction between special pleading for special cases of people. I know that some of the organisations feel that that is appropriate and that that is the way forward and that that is a particularly special case that requires its own tailored response. I can understand their view on that, but they are obviously representing a particular group of people and that is their function. If you are looking at a provision of the law, should it not equally apply to others who may suffer from the same type of behaviour and find themselves in a situation where evidence is difficult to gather in other circumstances? The way that the English law is being implemented at the moment, are we seeing courts approaching different instances in different ways? Are there issues around the thresholds that we were talking about earlier? Are they being resolved in relation to the laws that apply in England and Wales? You really need—this is one of our issues that we raised in our responses—that if you have a number of legislative provisions coming in one after the other and we had one last year in the abuse of behaviour, it is difficult when they are coming in one after the other to assess the efficacy of one individually as opposed to all of them together. That can be a difficulty, but just simply by getting cases through the court system, I think that it would be a bit premature to form any view as to how the English provision is working out. My understanding is that the English legislation came into force in December 2015, and, thus far, there is not very granular data, as far as I am aware of being reported. Overall, looking across the whole of England, one of the comments that has been echoed in the media is that it is not, in fact, being used very much. It is being used in cases that are often not just predicated on the evidence of the complainer, but where, for example, the police find in the complainer's car tracking devices where there is very strong corroborative evidence or communications data reflecting regular contact between the alleged abuser and the complainer. In Scotland, of course, those issues of corroboration are even more important as a matter of law. We have to produce them for a prosecution to proceed, so those, I think, are the kinds of cases that are being taken in England, though it is difficult at this stage for the reasons that were just given to take a really systematic view of that. In the act, which I think is section 76, the Serious Crime Act extends to those who live together and are members of the same family. The final point that I was going to take again was on definitions. I think that in relation to the bill that was implemented last year, if you were talking about references to intent but also to recklessness. I think that, in submissions from all of you, there has been some concern expressed around the definition of reckless behaviour. Is that something that remains, despite the fact that we now have legislation in place that appears to refer to all sorts of instances? Is it another example where it is too early to tell how that will be viewed by the courts and implemented in practice, or are there particular concerns arising out of its use in relation to the draft bill? I think that most of the submissions were concerned about the element of recklessness. I am just reading from section 38. The definition there is whether it is likely to cause a reasonable person to suffer fear and alarm, or whether the person is reckless as to whether it would suffer fear and alarm. However, what section 38 and 39 deal with threatening and abusive behaviour and stalking? I think that the GBA's particular concern had been in a situation in which the act is envisaging criminalising even omissions that could potentially be convicted of recklessly failing to do something. It really encapsulates our concerns about the very broad nature of the types of behaviour that could be captured by the act as defined even reckless omissions. I know that we focus on perhaps the most extreme minor examples, but that is the difficulty that the umbrella of the act would cover all of those situations. Whereby the bill might avoid opening up situations that could be viewed far too broadly? I suppose that the straight answer would be to make it that the offence would have to be committed intentionally rather than recklessly. Is that a view that has been shared across the panel? I think that again to go back to the section 76 offence, the mens rea component of that is that the accused is new or ought to have known. It is maybe worth stressing that in Scots criminal law in general mens rea has assessed objectively, which is to say that you do not try and make windows into men and women's souls, but you try and draw inferences about what they must have known based on their patterns of behaviour. It may also be worth stressing that recklessness is used in a range of different criminal offences, but it is not a new term used in the law. It means something more than negligence. Generally, it is often described as a complete disregard for the circumstances and implications of what you are doing. In the sense that that perhaps suggests a higher threshold than perhaps just using the word recklessly might imply in the common language. Personally, I do not see a particular problem with making this a crime, both of intention and of potential recklessness. Mr Tickell, a question for yourself about your concerns about the term reasonable person, I know that has been touched on previously. I am just trying to think of the existing arrangements whereby two officers are sent to a dwelling house and they are making a judgment. Is that the judgment of reasonable people, followed by the judgment of the officer at the custody making a reasonable judgment? Is that not an intrinsic part of the existing arrangements in any case? I think that that is true. My particular complaint or concern about the legislation was about the use of reasonableness as a defence, in the sense that you could defend your behaviour if you could argue that it was reasonable. The point that I was trying to make was that some behaviour might be unreasonable and yet not worth criminalising. Whereas reasonableness is also used in the earlier part of the bill to determine whether the reasonable person would think that the abusive behaviour was likely to cause the complainer harm. Maybe you are asking about the second of those two words. I was principally talking about the first in terms of the defence. Particularly for the court practitioners, the existing arrangements whereby, as we would understand, police officers may be called to premises and detain one or other party. At some point in the process, there is a decision taking that this merits further inquiry, so people may be released. That has given rise to a number of fairly high-profile, historic abuse incidents where a partner behaviour, particularly violent behaviour, of an offender over a number of years has resulted in quite solitary sentences. We do an understanding of the progressed, amended or unamended approach that would be taken in relation to coercive behaviour, which I hope we would all appreciate needs to be addressed. The response by the domestic abuse task force in terms of they have a joint protocol with the Crown Office and Procurator Fiscal Service. That protocol determines that when officers attend an incident of domestic abuse, the investigative response is more akin to a murder inquiry than the old response, which was to walk the man around the block and then put him back into the house. Now that there is an assumption made, for example, that there might not be anyone being able to speak to the incident, there is much more proactive gathering of evidence from neighbours, etc. The focus is very much on the safety of the situation, rather than allowing it to perpetuate in the same way. Of course, the difficulty that we always have had in Scotland is the requirement for corroboration, and that can be very difficult because this is a classic offence that would be committed in private. As you know, you are referring to that the police tactic has also been to then go around and proactively investigate with former partners whether they have been subjected to the same types of behaviours, which then allows a prosecution to be brought that involves charges in respect of a number of complainers, and that brings in to play something called the Moor of Doctrine, which allows corroboration to be found from the separate individual complainers. That has been very successful in terms of a policing tactic, however, to suggest that it is popular among individuals that do criminal defence work would not be wholly accurate, if I can say that, but one would anticipate that that style of policing, that style of evidence gathering, would be replicated. Of course, the police are not going to be called to—no one is going to phone up and say that there has been a course of coercive behaviour—it is going to be an individual actor that is going to drive that. As regards the resources that would need to underpin this, then clearly, if there is that level of investigation that is going to be enhanced in relation to a range of domestic abuse situations, then there will be significant implications. Implications already in how the current system is operating with the range of offences that we have at the moment. I mean, budgets are being curtailed, difficult decisions are being taken, great steps have been made in specialist domestic abuse courts, domestic abuse cases are given a priority in trial fixing so that they become more speedily into court, so that witnesses are not hanging around and waiting for ages. That puts them as a priority, but inevitably other cases fall further down the line, and some fall off the edge totally and are not prosecuted at all because there is now a view that certain offences need not be brought into the criminal courts that can be dealt with elsewhere. However, there is a pressure building on the existing system, and that is not to say that the bill should not go ahead, but it will inevitably put an additional pressure on a system that is already suffering. That is no reason not to do it, but it is something that everyone should recognise. Yes, indeed. The pressure to do detailed inquiry does not necessarily result in a as the complainer would see it a speedy response to their concerns. The bill envisages cases where the complainer, as we would call it, or the victim, or the person who we believe has been subjected to this crime, may not be giving evidence at all and may not support the charge because the bill does give the opportunity for cases to come into court where that person will not give evidence at all that the evidence will be relied on from other parties or from other sources. That becomes even more difficult. What would you concern me about then, please? Well, you can visage a situation where someone is convicted of a crime in a way to protect an individual from that crime, but that individual has not come to give evidence to support what is being said about that behaviour. Therefore, you could envisage a situation where the victim does not accept that she was the victim of the crime. She has not come to court and given evidence because it does say that it does not have to rely on the evidence of the victim herself or himself. It envisages scenarios that may not happen. I cannot myself think of scenarios in which you could gather that much qualitative evidence without the individual giving evidence herself of what she has experienced, but the bill does envisage a scenario where it is not essential to have the evidence from that person. Presumably, that would be pivotal if the complainer was incapable of giving evidence for whatever reason—perhaps mental incapacity or illness or whatever. It would be important that the criminal law could intervene in those circumstances if there was a known pattern. That is why the bill is there for situations in which someone is psychologically damaged. They are not aware of how they are suffering or refuse to accept it because they consider it acceptable behaviour when, by anybody's reckoning, it is not. When you look at how you evidence that offence, that becomes even more problematic. It is probably worse stressing that it is much more likely that far more cases will arise where you have the evidence of a complainer, not that much more evidence than that and the case never proceeds at all. However, ghastly and tyrannical, their partner has been to them. In that sense, it is always important that, with those criminal law interventions, to remember that we have to take corroboration into account. We have to take the wider evidential rules, which impose significant restrictions on the capacity of any criminal law to prosecute crimes that take place in private. We see that with rape conviction rates. We see that already with crimes of domestic violence, already covered by laws on assault, laws on threatening or abusive behaviour. It has already been touched on by the opportunity for the civil law to provide protection there than if there is an insufficient evidence for criminal prosecution. Clearly, we have heard that there are also implications for that, too, in the access to criminal legal aid, which we need to be. You would have to use a number of the civil orders that have already been referenced by a number of other members of the panel with the problems that have already been inherent in that, I think. The case is likely to face much more complicated investigative rape procedures, and it strikes me that the defence is similarly going to have to respond in kind. It makes the defence of those charges very difficult, time-consuming, because the very definition of the offence of this course of coercive behaviour and the relevant effects of making people dependent or subordinate, we could envisage a situation where a person accused of those will not be able to be readily advised while there are limits to the admissibility of the evidence that you are proposing that you wish me to lead, because you would have to say that, by the definition of the act, the accused person could rightly want to introduce a lot of evidence about the day-to-day activities in that person's relationship. So, you know, there are add-on effects for every aspect of the criminal justice system, including the defence. What Andrew says about corroboration, and I know that it is some people's bet noirs, but remember that the whole criminal justice system, one of the main tenancies that you are convicted when the court is satisfied beyond all reasonable doubt, and it is a high standard, and it's inevitably a high standard in any good system of criminal justice, whether there is corroboration or another range of safeguards or protections. So, you do obviously have that higher level of proof that you have to surmount in a case, obviously, in a civil case, it's a different situation. Okay, thank you very much. Thank you perhaps. Last panel about the Crown Procurator Fiscals submission, which said that the potential this goes to the heart of the sufficiency and the corroboration aspect. The potential evidence may be available from a range of sources, including friends and family who may not have directly witnessed the behaviour of the accused, but may be well placed to give evidence of the relevant effects that is had on the victim. Again, if we go back, which was such a good source of just trying to get our heads around to build the evidence that we heard from victims, then there was the isolation, the cutting off from the family. Could you comment on how that would play out and would that perhaps alleviate some of your concerns? I would imagine that it could alleviate some issues where you can have evidence from third parties, but it then also opens the door for third parties to bring their own prejudices and their own complaints about third parties and their own perceptions of relationships, which may not be accurate. That's why it would have to be put to test in a criminal court setting. I think that there could be problems and benefits in relying on third-party evidence in those cases. I think that there are also issues around the admission of hearsay. Primary hearsay is allowed in courts in that evidence of something being said by A to B, but that does not in itself speak to the truth of what has been said, so that the issue around the admission of hearsay evidence will allow it to a certain extent, but not to speak to the truth of the matter. If we are going to ask family members, for example, to give evidence about what they viewed, what they saw in terms of not being direct eyewitnesses but in terms of, for example, seeing a family member becoming more and more isolated, we are in danger of asking non-expert witnesses to express opinion in court, because we are asking family members to give a description of perhaps what their perception was and then to express an opinion on what that amounts to. We have very strict rules. We don't let witnesses do that. Only experts can be witnesses of opinions that are allowed to express opinions. It is going to be very difficult. We were told or she was told so and so did not welcome us, did not want you to visit. If it was explicit, that was not an opinion, that would be a statement of fact that the person who was isolated. Would that then, as evidence is supposed to—well, I suppose that it is still hearsay. You are absolutely correct. Someone is saying that I was told or she did not want us to visit, but if the witness then goes further and says, and that happened because he told her that we were not allowed to visit, the second part is the opinion. It might be quite difficult to manage that in a court setting, but that is the role of the judges to do that and to control that evidence rules are followed. However, if there is reliance on that sort of evidence, then you can understand why it could become very important. It might be quite difficult for witnesses, civilian witnesses, who are not trained lawyers to understand where the limits of their evidence should lie. I was going to ask about recklessness and that point has already been covered. I want you to briefly come back to the issue of children and the aggravator in section 4. Barnardo's and Children First have both raised concerns around the way that is described and discussed and drafted in the bill. I want to specifically focus not on the issue of a child witnessing or hearing abuse, but on where that child is used in the commission of the offence, particularly if it is a very young child that is used to perpetrate and continue psychological behaviour by an ex-partner to the parent of the child. If a young child does not fully understand why they are being used but they are perpetrating abuse, they are the victim but they are also continuing abuse or being used to continue abuse. Should there be something else in the bill, or are you content that there is enough in the bill to reflect that, or is that issue captured somewhere else? To clarify one point, I am clear. Do you mean scenarios in which, for example, one partner poisons the outlook of the child in respect of the other partner, where they turn them against them? No. That is criminal in some jurisdictions, interestingly. No. Where a child is used, quite specifically, to continue psychological abuse by behaviours and in different ways that child is used? I suppose that the bill focuses on the abusive behaviour of the accused person, and behaviour can be acts, emissions, things said, things not said. Given that extremely broad definition of behaviour, which includes doing things and not doing things, I suppose that it is hard to see why that would not be covered already under the provisions. I just want to briefly go back to where the victim is not the complainer. To test what that means, because surely we have lots of examples of that already, where the victim lacks legal or practical capacity as a child. In other parts of the legal system, there is nothing particularly novel about the victim not being able to be a complainer, is that it informs this debate, is that it? I think that the difficulty here is, depending on what actions or activities you are seeking to show are criminal, you can have actions which of themselves would not necessarily be criminal, but in a particular context then would become criminal. I would have thought that the evidence from that person would be very useful in seeking to prove that. I am not saying that it is impossible to prove it by other means, but it is an inherently difficult charge to prove. I think that the responses from legal contributors did indicate that. It will be difficult to get evidence to support this charge. It will not be impossible, but it will be difficult, and it may be resource intensive, and it may be lengthy, with no guarantee of a conviction at the end of it, because obviously there have to be high standards. It will be difficult but not impossible. It is then an added difficulty if you are not having the one witness who, in other domestic settings, the breach of the peace type charge or the assault charge, those cases in a domestic setting generally are heavily reliant on the evidence of the individual who has been subjected to that crime. It is just an extra difficulty, as it were. It is not to say that it is impossible to do, but it is just an extra difficulty in bringing that type of charge, because it is so wide-ranging. It incorporates both behaviour that is not necessarily criminalised at the moment, but it also incorporates behaviour that is already criminalised, threatening, intimidating behaviour and violent behaviour. That is all covered by existing legislation or existing laws. I suppose that there is a risk that if the victim is not prepared to be a complainer, they could end up as a witness for the defence, and therefore the prosecutor would have to consider that. Could inadvertently be making matters worse for that individual? I will ask a little bit about the low bar issue that has been raised in various definitions. The first was the course of action. The definition and the faculty of advocates says that it avoids criminalisation of a single isolated incident, but at least talks about it on two occasions. However, the law society points out that there is no indication of what gap of time might be reasonable, so that two incidents could conceivably happen on the same day. Years apart? Years apart, yes. Could you comment on that? Is that instrumentable? How do we address that low bar? I think that the law society simply raised that, because when we were discussing this in committee, we noticed that the policy memorandum was talking about a pernicious, sustained, on-going course of conduct that can be as damaging as any violent assaults, because of its pernicious and continuing nature, perhaps over a period, a long period of time, and how damaging that can be. However, in trying to express that, we then have the act that says a minimum of two occasions. There seemed to be a bit of a contradiction there in what the initial aim was from the bill. To put into occasion, it did not seem to marry up with this low, a continual conduct of, as it was called, a pernicious and systematic over a period of time, of wearing down an individual, as it were. That is what people would normally understand by the idea of coercive and controlling that terminology, which perhaps lends itself to that explanation that it is on-going, perhaps not necessarily high-level and dramatic on any one occasion, but it continues and becomes, I think, pernicious with the word that was used in the policy memorandum. Any other way to address that? I mean, certainly, again, going back to the people that we took evidence from, it was over a number of years and, interestingly, it happened. In every occasion, I think, once they were married, there might have been a relationship before and many years later that this came into play. Mr Tickell, I thought that it would be interesting just to get your thoughts on distress, which I think you have got a particular concern about the very low threshold being. Yes. I mean, if you look at the bill going back to its language, it says that the behaviour, the abusive behaviour, one of the list, has to cause physical or psychological harm. Now, if you just read that simply, that sounds like a pretty substantial test, but if you go into the definition of what psychological harm means, it includes the characteristic traditional criminal definitions of fear, alarm and distress. It strikes me that distress is not used in other comparable public order statutes that we have seen, but also distress is a fairly low bar for criminalisation. It is quite easy, perhaps, to cause somebody distress, to cause someone fear and alarm seems to me categorically different. Again, the language of distress, as I kept mentioning in the English legislation, is there, but it is qualified by serious fear or distress. We are talking again about a threshold of seriousness. If you told me that I looked fat, chances are that I might be moderately distressed by that, not to trivialise the matters, but that is a distressing thing. Distress seems a low bar, and if this bill is about the kind of really serious cases that we are talking about, which really do undermine people and their human integrity with their partnerships, it seems to me unnecessary to incorporate such a minimal threshold into the bill. If we are really talking about catching these cases which deserve to be criminalised and are not criminalised at present, I think that distress merely drags in a whole set of behaviours, given the broad definition of abuse, which may well impact on the credibility of this legislation and cast its net far, far too broadly. A very problematic thing, I would argue, in a statute that has a maximum penalty of 14 years in prison. For example, if I were to refer to you as Mr Tickle, as I did to begin with, that might— Because it is profound distress, profound distress. Maybe not such a case. One last aspect was the psychological abuse and the reasonable person test. I think that there was some concern that would the reasonable person be able to recognise or identify what was psychological abuse? Would that need expert witnesses? I think that we were at the view that there could be a situation arising where the only way of establishing psychological impact would be from calling an expert witness to speak to that, particularly in a situation where the complainer may not be supportive of the prosecution. It would be hard to envisage a situation in which the complainer does not give evidence, but the court could establish psychological distress in the absence of that evidence. The wider definition does not need to be an expert to recognise fear, alarm and distress in that context. Perhaps that might weigh against the requirement to have expert witnesses. In many breach of the peace type cases, you do not have expert witnesses explaining to sheriffs or to juries what fear and alarm looks like. In the sense that you use a lay definition of the distress that is likely to be caused to the complainer here. There was just one last aspect of the procedure, and that was in the bill that the accused should not be allowed to do his own cross-examination defend itself. I think that the fact of advocates was very much in support of that, that there is a mirroring of the provisions that we have in respect of sexual offence trials, where the perpetrator is not allowed to conduct their own defence. The reason being, of course, that there is not an opportunity for further abuse or further distress to the complainer. We felt that was a very sensible move. Did everyone concur with that? That concludes our question, Liam. Sorry, convener, just to follow up on that. I think that there was a concern that there were an individual who was unable to carry out their own cross-examination of a reasonably high worth but unwilling to instruct a solicitor that this may apply pressure on legal aid budgets. Is that right? The law society, I suppose, was something that you would have to be alert to, that if someone did, if the main aim of wanting to carry out, I have to say, our initial response as criminal lawyers was that we really did not come across that situation happening very often, certainly in some many cases, people saying that I want to represent myself. However, if that were to happen, I could see where it would cause distress, but we felt that it was appropriate to at least raise the issue that, if someone was manipulative enough that they wished to carry out their own cross-examination in a court setting to make life a misery for the person that they clearly wish to exert power over as it were, then one way of doing that, obviously, would be to cross-examine themselves. If you wish to eliminate that and people are quite calculating by nature, then another way of subverting the system would be to refuse to engage a solicitor. Then there would be a provision that would have to be invoked where the court would have to appoint a solicitor for that person. Realistically, there is the possibility that, by doing so, they can have legal representation free of charge. That was just a point that we wanted to raise as just a practical matter, that somebody could subvert the system in a different way by basically getting a free lawyer to do their trial for them. Had you worked that through to the extent that you felt that there might be a possible work-around or was the work-around to that then going to cause more serious problems in other areas? I think that it would need to be looked into. I am not sure that there is a real risk of it happening, but it may happen. There is a provision already in existence where there can be court-appointed lawyers in sexual offence cases where someone refuses to engage a solicitor or more commonly has sacked his solicitor as a way perhaps of creating more mayhem in the system. I am not sure how often it works. I do not know how often it is used and I do not know how successful it is in its current setting. The committee could not really see what impact it might have in this new setting. Thank you very much for all your evidence, which has been immensely helpful for the committee. We now suspend briefly to allow a change of witnesses. Item 7 is consideration of the railway policing Scotland bill at stage 2. I asked members to refer to their copy of the bill and the marshaled list of amendments and groupings for this item. I welcome the minister for transport and the islands and his officials. We will move straight to the marshaled list and I call amendment 1 in the name of the minister in a group of its own minister to move and speak to amendment 1. The committee's stage 1 report recommended that the new section 85C subsection 1 of the Police and Fire Reform Scotland Act 2012 and set by section 1 of the bill be amended at stage 2 so that it is subject to the affirmative procedure. That recommendation picks up on the conclusion of the Delegated Powers and Law Reform Committee and its own stage 1 report on the bill that this procedure should be amended. The procedure relates to the future regulations that are to specify which rail operators or classes of rail operators are covered by the requirement to enter into a railway policing agreement. The DPLRC's rationale for recommending changing the procedure is that it provides for a greater level of Parliament to scrutiny of those regulations. In correspondence with the DPLRC, we set out our view that the power to make those regulations is narrowly drawn and could only be used for the specified purposes. We also explained our view that applying the negative procedure to those regulations provided an appropriate balance between the need for parliamentary scrutiny and the effective use of parliamentary time and resource. However, as a written response to the committee's stage 1 report indicated, in the light of the views of both committees and the fact that those matters are always a balancing exercise, I am content to accept the recommendation. I am therefore bringing forward this amendment to change the procedure to the affirmative one. I move amendment 1 in my name. The question is that amendment 1 be agreed. Are we all agreed? I call amendment 3 in the name of Liam McArthur, grouped with amendment 8, 9 and 14. Liam McArthur, to move amendment 3 and speak to all amendments in the group. Thank you, convener's colleagues. I will recall from the debate at stage 1. Recently, I have concerns about both the content of the bill as well as the approach that has been taken by the Government. In relation to the latter, I think that it was a mistake for ministers not to consult in more than a single option that of merging BTP within Police Scotland. I recognise that this was their preferred option. I understand that they would have perhaps found it difficult to persuade BTP officers, staff and the wider public that their willingness to properly consider other options was genuine, but to not bother asking for views comes across as blinkered, dogmatic and even a little arrogant. As a consequence, Parliament has been presented with a bill that has not been properly road tested and has attracted concerns and controversy and criticism from the majority of those who responded to the Government's consultation as well as to the committee's call for evidence. My amendments in this grouping, along with others, that would inevitably have to be lodged ahead of stage 3 seek to explore an alternative option. Clearly, the approach and indeed the timing is less than ideal, but that, I do not think, is a scarce of the fault of myself or indeed of these amendments. It certainly is not the fault of the BTPA who came forward with alternative proposals well before the bill was introduced to Parliament. I believe that we have the opportunity to give this Parliament and Government greater oversight of the British Transport Police functions within Scotland—an opportunity that I think respects the commitments and recommendations of the Smith commission—and an opportunity that avoids many of the risks that this committee has heard arise directly as a result of the Government's hasty decision to press ahead with full pull and merger. On that basis, I move amendment 3 in my name. Does any member wish to speak or comment? Stuart Stevenson? Thank you very much, convener. I hear the policy position that Liam McArthur is expressing. I am glad to see that the Conservatives are now on the same side as the Government, of course, as the manifesto proposes to abolish the British Transport Police south of the border without providing it for any other options. However, that is neither here nor there. No, he won't. He wouldn't take one from me last week. Let me move to the substantial point that Liam McArthur makes. I think in particular that his choice of amendments is really rather odd, because the effect when you look at what he is doing is to remove the oversight of the British Transport Police authority from the British Transport Police in Scotland. Fair enough, you can choose to do that, but it does not put any alternative oversight into the bill as amended by his amendments. That seems a rather odd way to progress the policy position that Liam McArthur adopts. I do not accept Liam McArthur's policy position, but if one does, I think that the construction of what there is here. It also, by leaving section 1 in place, creates a whole set of duties in section 1 for the Scottish Police Authority in relation to railway policing in Scotland, but without correspondingly creating any oversight from the Scottish Police Authority for railway policing. It seems a rather curious set of amendments that I just do not think in practical terms are constructed in a way to deliver the policy position that I believe Liam McArthur is seeking to take. As I say, I have the more principle point that I disagree with his policy position as well, but if the policy position were to be accepted, I think that those amendments do not serve it properly. I am happy to support the amendments that Liam McArthur has tabled today. The concerns that Mr McArthur raised are the concerns that I have had throughout this bill process, that only one option was consulted on, and no other options were considered, despite the fact that the British Transport Police Federation in their paper indicated that there were two other options that should, in my view, have been consulted on and discussed. I think that not to do so is short-sighted and is a fundamental flaw in this legislation, and I am happy to support the amendments. I am delighted that Stuart Stevenson is recognising our Conservative victory in this general election, and I will make sure that I repeat as I go around the area. He will also know quite clearly that what is being proposed by the Conservative Party is quite different to what is proposed by the Scottish Nationalists here in Scotland. In support of the amendments by Liam McArthur, I reiterate the points that he has made during the stage 1 debate that we held in the chamber, that the Government only had one view on that. It is perfectly understandable why it did not consult with the public on more options, because when people responded to both the Scottish Government and the committee, there were a majority of people against and a majority of responses against the proposed merger of British Transport Police into Police Scotland. I think that that was a clear message. It should be listened to by the Government, and I would hope that the Government would take cognisance of that if those amendments are passed today. I will not be supporting Liam McArthur's amendment today for some of the reasons that Stuart Stevenson outlined. With regard to options, it is clear that the module that was chosen is the only one that makes it accountable to the people of Scotland. Liam McArthur's amendment also delays it until 2027, and I do not think that that is acceptable. It effectively rides a coach and horses through the whole bill, so I will not be supporting it. John Finnie? I think that the key point is one of oversight. Regardless of the module, and I accept that people want different models, I do not know anyone who thought that it was appropriate to have less oversight. Particularly at this juncture, where we have seen in recent times the absolute need to have scrutiny, I will not be supporting the amendment. George Cunningham, good morning everyone. I am here as obviously the substitute, but I have managed to watch a lot of the things that have happened in the coming up to the stage that we are at now. Although Liam McArthur makes his points and he makes it as eloquently as always, I will not be supporting him because I agree with everything that Stuart Stevenson said earlier on. However, one of the things that I really find quite bizarre in this whole scenario is that Douglas Ross is trying to defend the Tory party's conversion to the Scottish Government's policy. The actual wording in our manifesto is that we will create a national infrastructure police force bringing together civil, nuclear and stabulary, the Ministry of Defence Police and the British Transport Police to improve protection of critical infrastructure. Now, is that not just the case? If they are looking at very similar positions to the Scottish Government's looking at here, so that quite clearly tells us that the Westminster Government, but obviously if you are a Tory and you come over the border on a train, plane or a bus, you seem to change your mind just because the Scottish Government comes up with the idea. I think that they need to have a look at themselves and let's look at the practicalities of what we are trying to achieve here, and that is having a police service that is actually fit for purpose. If I could just add my comments, there was one option and only one option consulted on. I think that that was a great mistake. Therefore, I am supporting Liam McArthur's amendment. In relation to the point that was made by Stewart Stevenson, it merely reverts to the status quo and we do have concurrent jurisdiction at present. I thank Liam McArthur for his explanation of the reasons. He has brought those amendments forward and they reflect much of what he said at the stage 1 debate. Conveniently, Liam McArthur and other members of the committee will be fully aware of the Scottish Government's intention in bringing forward the railway policing bill. It is to make use of the powers over railway policing that are now devolved to this Parliament by integrating the British Transport Police in Scotland into Police Scotland. We made that intention abundantly clear from the outset, but it has also been a long-standing policy position of this Government for many years, both before and after our proposals to the Smith commission that railway policing powers should be devolved to this Scottish Parliament and the BTP should be integrated to Police Scotland. Notwithstanding that, let me not take away from Liam McArthur's concerns and where they are constructive, of course, the Government will always reflect upon them. However, what amendments 3 and 8 proposed here by Liam McArthur would do is to leave the Scottish Police Authority with the power to enter into railway policing agreements with railway operators under which Police Scotland policed the railways and railway property in Scotland but without Police Scotland having all the powers needed to carry out that policing on a routine basis. There would equally be no duty on the chief constable of Police Scotland to ensure that policing of the railways was carried out in accordance with those agreements. Amendment 9 would retain the policing functions of the BTP in Scotland, but, as Stuart Stevenson eloquently said, the governance duties of the BTP authority would no longer exist. If the intention underlying that amendment is that the BTP should continue to police the railways and railway property in Scotland, it is not clear to me how that is to be reconciled with the lack of any governance and accountability relationship between the Scottish Police Authority and the BTP. It is equally unclear how funding for the BTP's policing of the railways in Scotland would be secured since section 2 of the bill continues to permit the SPA to enter into railway policing agreements in respect of Police Scotland only. If the objective here is that the BTP should police the railways in Scotland and be accountable to the Scottish Police Authority and this Parliament for that, while also policing the railways in England and Wales with accountability to the BTP in the UK Parliament for that, my clear and previous express view is that that would prove complex and confusing for all those concerned. It is hard to see how Scotland's interests and indeed geography will receive the attention that they deserve within a framework that will inevitably remain dominated by the complex need of railway policing in London and the south-east of England. How that accountability might work is also far from clear. The legislative basis for it would need to be established. Liam McArthur's proposed amendments do not set that out. However, even if they did for the reasons that I've just given, we do not think that that would be a satisfactory solution. By putting all of that aside, Liam McArthur will of course be aware of, as other members have mentioned, the manifesto commitment that the Conservative Party, both the UK and the Scottish Conservatives, has to create a national infrastructure police force to bring together several nuclear constabulary, the Ministry of Defence Police and the British Transport Police, to improve the protection of critical infrastructure such as nuclear sites, railways and the strategic road network. If the Conservatives do have their way, they will no longer be a British transport police. We would have to wait to see exactly what form the new national infrastructure force will take. I do not expect that Parliament is likely to have any influence over that, but we would of course be keenly awaiting news if we were depending on it to Police Scotland's railways. I am not also aware whether or not that has gone out to public consultation or indeed whether other options were considered. From what we do know, I hope that I can persuade Liam McArthur that rejecting the opportunity to have a railway policing function within Police Scotland that is fully accountable to the people of Scotland and the Scottish Parliament, would not be a good use of powers over railway policing that have been devolved. The alternative before us, if a UK Conservative Government is returned, would appear to have railway policing in Scotland integrated with the policing of the strategic road network of England and Wales, but not with that of Scotland and integrated not with the policing of the whole of Scotland transport infrastructure, the ports, roads and airports, but instead with the policing of nuclear sites. It also appears from various press reports that this national infrastructure police force would be predominantly an armed force. That is what was in a recent article in the police oracle that they have suggested that. I would invite Liam McArthur, of course, to reflect on whether that is the path that he wishes to go down. So I ask Liam McArthur not to press his amendments, but if they are pressed, I urge the committee to reject them for the reasons that I have set forth. I thank everybody for their contributions and, in particular, Douglas yourself, convener and Mary, for the support for those amendments. I recognise that the concerns that I expressed at the outset are ones that have been shared by some colleagues on the committee. I also thank those who may not be able to support them, either because of the principle or the way in which the amendments were lodged for the way in which they conveyed their concerns. I think that, in relation to the comments from Stuart Stevenson, which set the tone for the comments made by others, I would fully accept that, as I did in my earlier remarks, the timing and the approach were not necessarily of my choosing, but an attempt, even at this late stage, to try and fashion away to road test an alternative approach, which the BTPA set out, as I say, in good time and could have been consulted upon. In terms of the oversight, it made it perfectly clear that statutory oversight of BTPA functions in Scotland was perfectly possible, short of full merger within Police Scotland. As I said before, it is regrettable that that was not explored explicitly at the time. I thank George Adam for referring to my comments as eloquent. I do not recall in how many years it was that we were on the education committee that he ever said anything as nice about me. Once the whips find out what he said, his stay on the justice committee may be time limited. I also thank the minister for his engagement with me in relation to the concerns that I have had about this bill from the outset. I do appreciate that. Even when we were hearing concerns from a range of stakeholders about what was being proposed, I think that it would be only fair to accept that there was also an acknowledgement of the willingness of the minister to engage with them on those concerns. I would wish to acknowledge that as well. Nevertheless, I think that we are where we are as a result of the Government approaching this on the basis that there is only one option. I do not accept that, although I believe that there is a great deal more work that we need to be done ahead of stage 3 to address some of the concerns that have been raised about the need for proper oversight of BTV functions in Scotland. Nevertheless, I am minded to press ahead and move amendment 3. The question is that amendment 3 be agreed. Are we all agreed? We are not all agreed. There will be a division. Those in favour, those against, no abstentions. Is that right? Thank you. Any abstentions? No. As a result of the division, five are four and six against, which means that the amendment is not agreed. The question is therefore, all right, we do not need that. We can therefore move straight to amendment 4. Amendment 4, in the name of Douglas Ross, grouped with amendments 5, 6 and 7, Douglas Ross to move amendment 4 and speak to all amendments in the group. No, we do not need to agree section 2 because we voted against the removal of section 2. Douglas Ross to move and speak to all the amendments. Members and indeed the minister will be very aware that during our discussions as a committee and indeed with numerous members of the panel of witnesses, concern was raised over training of officers should integration of British transport police within Police Scotland go ahead. I think that it is important at this stage that we remind ourselves of some of the quotes from our deliberations. I asked the rail operators about the personal track safety certificates and I said how would you react to Police Scotland said that they were not going to put all officers through the training for personal track safety certificates. Neil Curtis of direct rail services limited said we would be concerned. Darren Horley of virgin trains said we would be very concerned. Moving on then to the panel of witnesses that we had with Nigel Goodbrand of the BTP. I said in asking the question what implications will there be if officers in Scotland are not trained to the same level as BTP officers and they do not have the personal track safety certificate. Nigel Goodbrand said every officer in Police Scotland who intends to police the railway or go anywhere near the railway will have to have personal track safety certificate. Chief Superintendent McBride said we go through personal safety training because from a health and safety point of view it is necessary to protect our officers. He continued that is why we do PTS. The benefits that flow from that are all geared to the public and to recovering operations as quickly as possible when they have been brought to a stop by criminal act or mental health episode. Michael Hogg of the RMT union said that about officers they are properly trained and having staff with a personal track safety certificate is crucial. He continued that anything else is pure nonsense as far as we are concerned. I think that it would be pure nonsense for us as a committee not to include very clearly that we expect all officers in Police Scotland who should this merger go ahead will have an opportunity either as dedicated BTP officers within Police Scotland or as officers who could be at the request of the chief constable and others moved to railway policing. They should and must all have a personal track safety certificate. The further amendments that I have lodged also stipulate and request that the Scottish Government bring forward information to this Parliament for scrutiny on the costs of training. That was very much an issue raised by Dr Murray in her paper as well. I think that the amendments that I am moving today add to the deliberations and the discussions that we have had as a committee. Should this legislation go through, I think that they are vital to ensure that both our officers and the public that they serve are adequately protected should they be policing on our railways. I move the amendments in my name. Amendment number six is in my name, so I now will speak to that amendment and the other amendments in the group. Further to Douglas Ross's amendments that provide for the requirement of training for the Police Scotland officers and a report on the costs of this training, amendment six and seven, which complement amendments four and five, by seeking to ensure that no officer can enter railway property without a PTS certificate having been obtained. At stage one of the committee, the committee heard evidence from the British Transport Police Federation to the effect that every officer in Police Scotland who intends to police the railways or go anywhere near the railway will have to have a personal track safety certificate. The National Union of Rail, Maritime and Transport Workers, RMT, agreed and stated that stated the following. Police Scotland would not have access to our railways if there was a derailment or a collision or any trespass on a railway. If Police Scotland officers do not have a PTS certificate, they cannot go on or near the running line. The rail operator operators all concurred with those statements. The stage one reports notes that the committee wrote to Police Scotland for clarification on the nature and type of training that it intends to provide to all police officers post integration and on whether all officers are to undertake personal track safety certificate training. In his response, Assistant Chief Constable Higgins explained that Police Scotland's training curriculum for new recruits at SPS, the Scottish Police College, is currently under review. Amendment 6 therefore clearly sets out the requirement for personal track safety training for police constables. Amendment 7 ensures that this training is to the same standards as attained by BTP officers by requiring that regulations specifying the level of training have been made in consultation with the Office of Rail and Road Network rail, who specify the current level of training for the BTP. Those amendments will therefore ensure that police officers operating in the railways will undertake personal track safety training to the level that BTP officers are required to obtain. Do members have any comments or questions on those amendments? Stuart Stevenson, followed by John Finnie. Thank you very much, convener. I want to first engage in the construction of the amendments. Perhaps I will address amendment 6 in your name, convener, in the first instance. Before doing so, I will just agree with the court, because we could hardly disagree with Douglas Ross. Every officer who intends to police the railway should need a track safety certificate, but we need to be cautious about what that means. Amendment 6 says that a constable must not enter railway property unless that person has completed track safety training. The question, of course, is what is a railway property? I have only given part of the court and I accept that. I invite you to complete the bit that you think I missed that matters. I am grateful to the member for giving way, because I gave the full quote. It says that every officer in Police Scotland who intends to police a railway or go anywhere near the railway will have to have a personal track safety certificate. I accept that, but you will find that that will merely reinforce the point that I am about to make. What is the definition of railway property? The definition of railway property in the bill at 85M1 provides a list. That list specifically includes a station and a train used on a network. Without a track safety certificate, a police constable cannot enter a station, which I am perfectly entitled to walk into any time that I choose to do so without my having a track safety certificate. Furthermore, I can enter and use a train without having a track safety certificate, but the amendment would prohibit a constable being able to exercise that same right. There is further reference at 85M3 to the definition of railway property in the Railways Act 1993. At section 83 of that act, it states, station means any land or other property that consists of premises used as or for the purposes of or otherwise in connection with a railway passenger station or railway passenger terminal, including any approaches for cycle store or car park, whether or not the land or other property is or the premises are also used for other purposes. A police constable is a constable whether on duty or not would be prohibited from cycling to a police station, putting their bicycle in the car park because that would be prohibited, purchasing a ticket in the station booking office because he is not permitted to be there without a track safety certificate, would not be permitted to then use a train to travel to another destination. It goes further than that. There are already circumstances where police constables as part of the Scottish police do enter the tracks without track safety certificates that would be prohibited by this. For example, in the outskirts of Inverness to the east of Inverness, there is a level crossing. Police in hot pursuit of a criminal fleeing an act of criminality would, without a track safety certificate, be unable to progress across that level crossing on to the railway to pursue a criminal if this particular amendment were to be passed. In terms of the construct of what is trying to give effect to the policy position that is being espoused here, it is not a construct that works at any practical level. Turning to the lead amendment here, which is amendment 4, in the name of Douglas Ross, the specific point really is who needs to have track safety training. We have already seen in the last week, for example, Waverly station, Police Scotland supplementing the British Transport Police and being on patrol in the concourse of Waverly station without track safety certificates, so we can see quite properly the collaboration that there is. The real point is who is it that should determine what training particular constables require for particular tasks. I do not think that it is the duty of us in the Parliament to offer that matter to the minister. It is an operational matter for the chief constable to determine. It is entirely proper that, as part of the initial training of constables, there should be a reference to the duties that Police Scotland will, if the bill is passed, exercise in relation to railway policing, and they should be familiar with the constraints on a constable's proper actions. It is the same with the armed police. If a policeman who is not qualified to be an armed police is standing adjacent to an armed policeman who falls over and drops their gun, bluntly I am even dubious that that person should pick the gun up because they do not know about handling guns. It is the case that it is only people who are properly trained who should engage with the dangers that are specific to the environment of railway policing. However, what is said in Douglas Ross's amendment comes to a very different conclusion. Looking at amendment 5, which essentially is a follow-on to amendment 4, if amendment 4 falls, I have no particular objection to annual reports to ministers and to Parliament about what is going on in the police force. Indeed, if training is necessary, that is well and good. However, when we look at the whole issue around the limiting of who can have access to the stations, what is before us simply does not serve the policy purpose that is intended and appears to be almost deliberately to make it impossible for Police Scotland to continue to discharge duties that it currently discharges without any reported difficulties in relation to certain aspects of what is currently defined and would in future be defined as railway property. I would align myself with much of what Stuart Stevenson says about the forensic implications of should this motion go ahead. I want to talk of my particular police experience. I was a police dog handler. I was involved in mountain search and rescue and that involved me being conveyed and indeed winching in and out of helicopters. Those were both RAF and Royal Navy helicopters. Also, civilian helicopters, I conveyed my dog in a fixed-wing passenger service. In the course of that, I had to carry pyrotechnics, which have their own issues. My dog was conveyed in a motor launch on occasion and on occasion a Skidoo. I had to deal with firearms, albeit deactivated as part of training. I also had a second dog, who was an explosive detection dog. I had to handle a variety of types of explosives. Colleagues with drugs dogs had a variety of drugs that they dealt with. When I became a Police Federation official, I became aware of the role of vehicle examiners and the evolving situation that we had to be aware of, for instance, about the corrosive effect of brake fluid when vehicles were being examined and all those things were put in place. The point is that health and safety, in particular, legislation applies to all that. The legislation is not about micromanaging the police and that is not things that, in my mind, should be on the face of the ball. I won't be supporting the amendments. I think that Douglas Ross fairly set out a number of the concerns that we explicitly heard through the course of the stage 1 evidence around the training that those axins, the railways and railways properties would have. I think that that was reflected in the findings of the committee report. In a sense, we heard reassurances from Police Scotland that a training assessment would be undertaken, and we have no reason to doubt that. To some extent, that rather reinforces the point about the rather rushed nature of the legislation, perhaps even under pins some of the argument for the amendments that I have in a later grouping. Nevertheless, I think that whether or not the specific amendments that have been lodged in this grouping give effect precisely to the concerns that the committee acknowledged and reflected in our stage 1 report. I'll be interested to hear that the ministers respond shortly, but I'm certainly supportive of toughening up the language within the bill around this issue, because it was pretty much a central concern right through the evidence that we heard at stage 1. Yes, I can't add to anything that Stuart said, because all points were covered. As to what John said about, I agree that I think that these amendments are far too restrictive and specific and, frankly, unworkable. Also, this is a police operational matter. I don't think responsibility of the Government is the responsibility of the chief constable. For those reasons and others, I won't be supporting those amendments. Liam McArthur has more than adequately expressed a lot of the sentiments that I was going to bring up. I am mindy to support Douglas Ross in his amendments regarding training, and I think that it is worthwhile reminding ourselves that, during the evidence, we heard concerns around the dilution of well-skilled professional railway staff with losing the specialism. Every rail union in the country was opposed to this bill. The RMT, when they came to give us evidence, warned that they could take industrial action if the bill were to go ahead citing concerns about the safety of the workforce and of the travelling public. I think that it is worth reminding ourselves of that today when we consider these amendments. I think that, if the legislation goes ahead, it needs to be far more prescriptive and detailed about the minimum level of training that officers within the BTP would be required to have and also how much refresher training they would need to have. I share some of the concerns that Stuart Stevenson expressed in relation to amendment 6. That is simply because of the use of the real-way property. If the amendment were to be passed, if it would mean that an officer could not enter a railway station, for example, I would be unable to support that one, but I am happy to support the amendments around training. I call on the minister to respond. All the amendments here, as members have said, seek to dictate to the chief constable of Peace Scotland the nature and the level of training that officers working in a specific area of operational policing should have. We are not aware of any precedent for Parliament prescribing requirements on the chief constable in this way. The Scottish Government cannot support it. The chief constable is responsible for operational policing. His responsibilities, including ensuring that officers across Police Scotland have the specialist training that they need to carry out their duties, and that is continually kept under review to meet operational requirements. Neither the Scottish Parliament nor the Scottish Government should seek to intervene in the business of operational policing by dictating a fixed set of training requirements for railway police officers. We do not prescribe what firearms qualifications, driving qualifications and many other qualifications that are listed by John Finnie and his contribution, should have. Those are rightly operational policing matters. Neither should we be constraining specialist railway police in that way. Furthermore, the Government's view is that both sets of amendments have misunderstood the information that Police Scotland has provided to the committee on the different levels of railway policing training that it proposes to provide to officers in different parts of Police Scotland, which reflect different operational needs. Committee members will, of course, be able to see for themselves from the letter that Police Scotland provided last week to the committee in response to its stage 1 report that it is not Police Scotland's intention for Police Scotland to provide all of its 17,000 officers—17,000 plus officers—with a personal track safety certificate. That will be for the officers who work within the railway policing specialism, and similar numbers to that provided currently to BTP officers in Scotland. If members choose to move those amendme