I welcome everybody to the first meeting of the Justice Committee of 2016 and wish everybody a happy new year, of course. I can remind people to switch off their mobile phones and other electronic devices. Christine Grahame has sent her apologies as unfortunately she is unwell today. Item 1 is a decision to take business in private on item 8, which is on the work programme. It requires a bit of additional consideration and I wonder if I can get members' agreement to take that in private. The first item of business today is the consideration of one affirmative instrument, the draft public appointments and public bodies, etc. Scotland Act 2003, treatment of community justice Scotland as a specified authority order 2016. I welcome to the meeting Paul Wheelhouse, Minister for Community Safety and Legal Affairs, and the Scottish Government officials, Ingrid Roberts, Community Justice Division and Caroline O'Malley, director for legal services. I remind people that officials can't take part in this item but not in the formal debate that follows. Minister, do you wish to make an opening statement? I would if that's possible, Deputy convener. I'm happy new year, Deputy convener and members of the committee. I'm glad to first foot the committee today. I thank the committee for inviting me to speak to this order, which has been placed to ensure that the appointments to Community Justice Scotland will be regulated by the Commissioner for Ethical Standards and Public Life in Scotland. As I stated when I wrote to the committee on 16 November, I believe that it's important that a new body should be a regulated body and that the Community Justice Bill makes provision for that. I set out in the accompanying documents to the Community Justice Scotland Bill that my intention at new body will be established in autumn 2016 and take up its full powers in April 2017, a subject of course, the will of Parliament. In order to have the chair in place in six months prior to the body taking on its full functions and in line with the Audit Scotland recommendations on establishing and merging public bodies, I wish to appoint a chair as soon as possible after the bill receives royal assent in the event that it is passed by Parliament. The chair will then be in place to assist in the appointment process for the chief executive and the board members prior to the body taking on its full functions in April 2017. I believe that it's important that the appointment of the first chair and board, which will have responsibility for setting the agenda for our new lead body for community justice, is fully transparent and subject to the high quality of external scrutiny that the commissioner can provide. Addition of Community Justice Scotland to the schedule of the public appointments and public bodies etc. Scotland Act 2003 follows a recent precedent when setting up new public bodies. The commissioner cannot officially regulate the appointments until the body is added to the list of regulated bodies under public appointments and public bodies etc. Scotland Act 2003 by the Community Justice Bill. That will happen when the relevant provision of the bill comes into force. However, until then, that order will enable a representative from the commissioner's office to provide assistance during the early stages of the recruitment until section 3, subsection 3 order, is in force and it can be fully regulated. Thank you, convener. Thank you, minister. Can I invite questions from members, please? I think that the only thing that stood out was that we were passing an order for a body that hasn't yet been established. I think that you've explained the reasons for needing to do that at this point. There have been a couple of precedents that I'm aware of in the historic environment Scotland and Revenue Scotland also follow the similar procedure in establishing a shadow board in advance of the legislation being passed. Thank you. We'll move on to the formal debate on the motion to approve the instrument and I invite the minister to move motion S4M14967 that the Justice Committee recommends that the draft public appointments and public bodies etc. Scotland Act 2013 treatment of Community Justice Scotland as a specified authority order 2016 be approved. Any members who seem to make any points? The question is that motion S4M14967 be agreed to. Are we all agreed? I suspect that that's the first order to be agreed in 2016. Thank you very much. Thank you. We now move on to an evidence session on the Scottish Government's draft budget 2016-17. We previously agreed to focus our budget scrutiny on three areas of spend, policing, the fine rescue service and the Crown Office and Procurator Fiscal Service. Before the budget documents were published, we issued a call for views and took evidence on the financial planning being undertaken in those areas in order to inform the session today. Can I welcome to the meeting and wish a happy new year to Michael Matheson, Cabinet Secretary for Justice and Scottish Government officials, Neil Rennick, director of the Justice Directorate, Don McGillvery, deputy director of the Communities Directorate and John Nicholson, director of the Safer Communities. Do you wish to make an opening statement? I want to wish the committee a very happy new year. I'm going to propose that we split the discussion into three areas. We do the police first, then the fine rescue service, then the Crown Office and Procurator Fiscal Service to do all the structure things first. I first of all invite members' questions on the police budget. I thank you, convener. Gil, followed by John Finnie, followed by Roddy, followed by Margie. Thank you, cabinet secretary. The draft budget for 2016-17 seeks to maintain in real terms the current levels of resource funding for the SPA. How much additional funding does that involve? You're correct in saying that the increase in funding that that will provide for Police Scotland in the 2016-17 budget is just over £17 million of additional resource. Does the additional funding for the SPA indicate a departure from previous efficiency savings or will the services still be charged to try and maintain and look at how they can save or are they off the hook in that regard? It would be fair to say that Police Scotland and the SPA have already achieved a significant level of recurring savings over the past two and a half years, and there still continues to be a requirement to make further savings and efficiencies within the organisation going forward. This isn't a departure of recognising the need to make sure that they are continuing to seek and achieve those savings effectively, but it provides them with the level of resource that I believe will assist them in being able to continue to take forward the important work that they are undertaking in a range of different areas. For example, the additional challenges that they face around matters relating to counterterrorism will assist them in meeting some of those additional demands. However, the requirement for Police Scotland and the SPA to continue to identify efficiencies and savings remains, and we will continue to work with them to ensure that that has progressed. Is there an expectation that there will still be efficiencies and savings? I know that we have heard that the pips are beginning to squeak, as I said, but is there an expectation from the Government that this can be achieved? I think that you have heard in the evidence already that there is still scope for efficiencies to be found. There is no doubt that, when you bring together eight different legacy forces, there will always be significant areas of overlap in which efficiencies can be gained. I do not believe that they have all been realised as there are still areas of bureaucracy that could be alleviated, and there are areas in which further gains can be maintained. Part of the purpose behind the Deputy First Minister agreeing to a further provision of the reform budget, which has also been provided in this particular budget, is to assist Police Scotland in taking forward some of the investment that is necessary to support them in achieving some of those efficiencies. I am of the view that there are, of course, efficiencies that can still be achieved, and what we need to do is to support them in a system and be able to do that, whether it be in ICT or in other areas around procurement, where they have already gained significant efficiencies but where further work could be achieved. For example, working in collaboration with other public sector organisations and how they are purchasing particular issues and how they go about achieving procurement arrangements, those are areas in which there is still significant scope for efficiencies to be saved. There is a clear desire on the part of the SPA and also Police Scotland to make sure that they continue to focus on those matters and bear down on them in order to maximise the savings that can be achieved and that they are achieved. It is strange that we are under pressure from budgets and yet there is this difficulty with VAT. Maybe you could answer in regards to both services because we are constrained for time. What is the Scottish Government doing to try to resolve the situation in which VAT is administered in Scotland with the fire service and the police service, but not south of the border? I have made it very clear to the committee before that it is entirely unacceptable that Police Scotland and the Scottish Fire and Rescue Service are the only two services in the UK in policing or in fire and rescue services that they are having to pay for. The committee has expressed concerns about that in the past as well. We have continued to make representation to the UK Government on this matter and we have been unable to make any further progress in this issue as yet. Police Scotland is costing the region of around £25 million a year, our fire and rescue service around £10 million a year. Of course, there are those who would argue that they were warned about this before the reforms took place. I do not deny that those warnings were highlighted by some individuals. Given that we have gone to national services for both of those organisations that they no longer qualify for VAT exemption, if that is the case, I do not understand why the national crime agency, a UK-based agency, gets VAT exemption. I do not understand why academy schools in England were allowed to be given VAT exemption even though they are centrally funded as well. The PSNI in Northern Ireland and their fire service get VAT exemption. They are nationally funded organisations. If there is a political will for it to happen, it is very clear that it can happen. It is entirely unacceptable that we continue to be in a position in Scotland where we are spending something in the region of £35 million a year to pay VAT to our management treasury, where it is struck with a pen. It could change that, and that is money that could be better invested in public services here in Scotland, including in fire and rescue services. Is there anything that the Scottish Government can do to put the beat on this matter to raise it up on the agenda a bit more? It seems to me that we only hear about it in situations like this, but we do not hear much about it at any other time. We have consistently raised it with the UK Government at every opportunity. Let me give you an example. We are in a situation where we are looking to have to replace the radio systems that are used by our emergency services, including police fire and ambulance service. That over the course of the lifetime of that contract, which we are negotiating and working with the Home Office on, will probably cost us an excess of £400 million over the course of taking that particular area of work forward. The reality is that we are the only part of the UK that will be sitting round that table having to pay VAT on this. Every other part of the UK that is joining in in this particular programme will not be paying VAT on it. We are taking every opportunity to highlight the inequity of the situation that we find ourselves in that we have two of our key public services here in Scotland, emergency services, having to pay VAT in a way that no other service of a similar nature in other parts of the UK has to meet. For example, going forward to new investments, when it comes to working in a pan-UK basis, we are the only body sitting down at the negotiating table having to pick up the VAT costs that are attached to it as well. It was the finance committee of this Parliament that flagged up that there was a problem at the time when the legislation went through. It was known, but at that stage Northern Ireland had been exempted by the legislation at the time when the VAT legislation went through. Northern Ireland was specifically exempted. Obviously, the UK Government has exempted a number of other organisations since then. Have they given any indication to you why they have taken a rather intransigent position on the Scottish Police and the Scottish Fire and Rescue Service where they have been prepared to change the rules for others? To a larger extent, no. You are correct to say that they have chosen to give other bodies exemption. The Olympic Legacy Committee, which was a national organisation, has given that exemption. It appears to be that, sadly, it is politically motivated and it is entirely unacceptable. We will continue to make representations to the UK Government on this matter at every opportunity. To date, we have not had any further progress in this matter with the UK Government despite repeated calls to address this matter. It has given other than to say that it is a nationally funded body that no longer qualifies for VAT exemption. Beyond that, there has been no further explanation. I am trying to understand the relationship between two of the statements made by the Cabinet Secretary for Finance on 16 December. One of them says, I am pleased to confirm today that we will provide real-terms protection for the front-line policing resource budget next year and, if we are re-elected in May for every year of the next Parliament, which is a boost of £100 million over that period. I am announcing further support today instead of removing the reform budget as Parliament intended in order to consolidate the reforms and to support the work of the police and committing a further £55 million next year to the important task of community safety. Can you talk about the relationship between those two statements? In particular, in the event of your Government being re-elected, is that an additional £20 million that is to be injected straight away in May? You mean May of 2016-17? Yes. That is in terms of real-terms increase at £17 million. The relationship between those two statements and a boost of £100 million over the period in the event of you being re-elected, plus the announcement of a further £55 million next year to the important task of community safety. In terms of projecting forward the real-terms increase that would be in the resource budget over that period, it would accumulate to just over £100 million over that five-year period. What would it mean for 16-17, Cabinet Secretary? Pardon? What would it mean for 16-17? That is the £17 million that I referred to Gil Paterson in my other response. Is that the £55 million then? That is the first note. There are two separate things here. There is the police central Government budget, which is the £55 million that you are referring to, which is the continuation of the reform budget that is going forward. There is a real-terms increase in the resource budget of Police Scotland. That means that the real-terms increase in the resource budget for Police Scotland over the term of a five-year period, if you give a real-terms protection, would be just over £100 million. In the 2016-17 budget, that will amount to just over £17 million. The £55 million of central Government resource or central Government reform budget is separate to that. That is an addition to that. What is the additional sum in the event of your party being re-elected in May? What is the additional sum? I am trying to imagine that—and I am not campaigning for you, obviously—I mean, can people look forward to a windfall of what, five into 100 million, 20 million extra? Is that what you are saying? It is £17 million additional in the 2016-17 and over the course of the five-year period. It starts to increase in further years. The profile of a real-terms protection would operate, which would accumulate over that five-year period to around £100 million of additional resource. As regards the statement of £100 million, it does not really need that qualifying, but if we are re-elected, it is there anyway. This is a one-year budget, which is £17 million. As the Deputy First Minister set out, we are committed to maintaining that in future budgets. Another change of government could result in a change of budget approach. It is £17 million then? It is £17 million because it is a one-year budget. What we have given a commitment to is that if we are re-elected over the course of that five-year period, it will accumulate to over £100 million. We are going to deal with the Scottish Fire and Rescue Service separately, but it is my understanding that they will be able to retain capital receipts in respect of property disposals. Is that the case for the police? Yes, it is. What will they be able to use that money for? Before they decide on what they want to use to invest in capital projects or other projects that they are taking forward, could they use it for revenue purposes? No, it would be capital. So, whether you can't put capital into revenue. I am just checking on that. With regard to a major capital project—that is an ICT project, an I6 in particular—is there a contingency to deal with that at all? Is there a contingency to deal with any difficulties that may arise with that? As in the way of an overspend or a change in the cost of it? There is a contractual agreement in place just now for taking forward that project with the company that is responsible for developing I6. That would be a matter for Police Scotland and the SPA to work out within their own budgets if there was any additional cost that may be associated with that. They have not highlighted anything at this particular point, given the contract to have in place at the present time. What they are able to do is, if they want to use some of their capital receipts to undertake other areas around ICT infrastructure and capital investment, then, for some of the capital receipts that they receive in the course of a year, they will be able to do that if they thought that that was necessary. That would include use for I6? Technically, if it was necessary, but I am not aware of any indication that there is any need for additional costs associated with it at this stage. I would like to build on a couple of the themes that Gil Paterson and John Finnie have talked about in relation to the budget. Since we took evidence on 1 December, Audit Scotland produced a report. In that report, paragraph 20 of the report, they make reference to the fact that the Scottish Police Authority forecasted an overspend of £25.3 million against its 2015-16 revenue budget. They go on to commenting on the comment of the First Minister about a real-terms increase in the police revenue budget to suggest that if a 1% real-terms budget increase assumed for every year from 2016-17 to 2020-21, we estimate that there could still be a cumulative funding gap of over £80 million by 2018-19 unless additional savings are made. It is my understanding that the report was prepared before the Deputy First Minister gave his budget statement. Would you like to comment on that particular paragraph and ways in which it might not tell the full story? You are correct to say that the Audit Scotland report was published prior to our draft budget being published. There are a number of assumptions that they have made in their particular report, which obviously did not take account of some of the measures that we have published in the draft budget. For example, the Audit Scotland projected budget figure assumes that there would be no reform funding allocated to the SPA in any year. In fact, that is the reform budget that I was referring to, the additional £55 million that has been allocated as part of the draft budget. Additionally, the Audit Scotland expenditure figure was based on a starting assumption of an overspend of £22.3 million at the end of the current financial year. In fact, we understand that the end of year overspend will be significantly lower than that as a result of the recovery plan that the SPA and Police Scotland have put in place. Additionally, the Audit Scotland budget gap figures are based in part on the assumption that there are no further efficiency savings that will be achieved in future years. In fact, some of the current year's savings have actually been delayed until next year, and the reform budget, as I mentioned earlier, is to assist Police Scotland in achieving some of the changes that it needs in order to obtain further savings. Those Audit Scotland projections were compelled in advance of the Scottish Government's draft budget, which was published before the Christmas recess. Obviously, we have also, in addition, given the commitment that the First Minister has outlined, if re-elected in maintaining a real-terms increase for Police Scotland's budget in future years. I could also perhaps move on now to a report from HMICS, which I also think came after we conducted our budget session on 1 December. It touches on also the question of the absence of a financial strategy on the part of the SPA. Again, I will just quote from Mr Penman's report. While the current commitment to maintaining an additional 1,000 officers is welcomed and has strengthened policing across Scotland, it can only remain effective and efficient whilst those officers continue to perform operational policing roles. In the absence of a long-term vision of policing, a wider workforce strategy and a clear financial strategy are a real risk that financial savings will continue to focus primarily on reducing police staff. I would like to comment on that paragraph, and also in particular on the absence of a financial strategy on the part of the SPA. To rewind to the start, in police reform, there was the outline business case that was developed and published in 2011, which was a very detailed outline business case, arguably possibly one of the most detailed outline business cases for a major area of public sector reform. That set out a range of different options in progressing reform within policing. Any further financial strategy or financial business case would then have to be taken forward within Police Scotland and within the SPA once it had been established. If I recall correctly, you previously received evidence from the former chief constable, Stephen House, in standing out that that work could only then be taken forward once the organisations had been established. The early work that was undertaken by Police Scotland and the SPA was around our corporate strategy, which set out a range of different areas, including the financial aspect, personnel and a whole range of other areas that they would be taking forward over the three-year period. What they are doing, having taken that forward over the past couple of years, is that they are now in a position where having published their draft budget, they have been able to set out their financial strategy for the forthcoming financial year and how that will then plan into the future. We have also, as a Government, given an indication what our intentions would be over the next five years, which will give them greater certainty and be able to plan around their financial strategy in moving forward. The other important bit of work that they are undertaking, which will report by the summer of next year, is the work that they are looking at future demands on the service and to plan for the future. A combination of having set out a draft budget allows them to plan for the forthcoming financial year and also potentially for the next five years. The piece of work that the SPA is undertaking around future demands being placed on the service and the nature of the demands, which will be made of the service in coming years, will assist them as well. In the name, we will look at what they need in the way of resources, not just in financial resources but in personnel resources and the way in which they deploy them as well to meet that demand. That, perhaps with the review on police governance that you set up in September, all those factors coming together might mean that there is a need to take out of review exactly where the police budget is going, not necessarily for next year but for the years of the next parliamentary session. Will you take that on board in terms of the wider process? The police governance review, which asks the new chair to undertake, will be completed by the spring of next year, alongside the work that they will complete in the summer of next year around future demands that the service will be facing as well. We will be looking forward over the next five to ten years period. I want to give a clearer indication as to what they believe may be the financial demands and the wider demands that will be placed on the services, and we will have to wait to see what the outcome of those particular pieces of work are. However, we have sought to provide as much assurance as we can from this budget and from future budgets from our perspective around what the police budget would look like in future years, which would give them a greater level of certainty in planning for those matters. Just to continue that line of questioning, cabinet secretary, on 18 December, at Scotland, we are very critical of the SPA's accounts. They focused on the deficit that you have talked about in part from a recovery plan and other measures, but they expressed some concern about incomplete records and poor financial management. Are you satisfied that that has been resolved in SPA? In addition to the points that I was making earlier on to Rod Campbell about the differences between what is now in the draft budget from the assumptions that were used by Audit Scotland, the issue around their accountancy work is an area where the Scottish Police Authority has assured me that they are taking action in order to make sure that they get greater accuracy around those areas. You may be aware that one of their intentions is to appoint an interim chief financial officer in order to support some of that work over the coming months in order to address some of the deficiencies that have been highlighted to ensure that there is greater accuracy around those matters. The SPA is committed to making sure that those issues are addressed and that they are taking action just now in order to do so. The other criticism was the long-term financial strategy. That was first called for in 2013. You have stated that it was unrealistic to have a long-term strategy when so much had been decided. We are now in 2016. Although you have mentioned a recovery plan and a review coming next year, how confident can we be that either Police Scotland or the SPA have a long-term financial strategy, i.e. three to four years in place? That is one of the reasons why we have set out over the next five years what we intend to see as the resource budget for Police Scotland is to support them in a system and be able to undertake that work. Given that we have provided them with a greater level of detail over the coming years, that will support them in a system and be able to do that. They are undertaking already a detailed level of work off the back of the draft budget, which was late, not through our choice, but late as a result of the delay Westminster to plan for the forthcoming financial year. By setting out our intentions, what our intentions would be if we elective for the next five years provides them with a greater level of understanding about what their finances would look like over that period of time. It is fair to say that that long-term financial strategy is not in place for either Police Scotland or the SPA. They are undertaking that work just now on the basis of the draft budget. They had the three-year strategy, which they had taken forward as part of their corporate strategy, and they are now, as a result of the draft budget, able to now take forward their planning for the forthcoming financial year. I think that, at Scotland's point, they first asked for it in 2013. We are now in 2016, and we are still no closer to it, so it might be something to reflect on. It would be confusing a couple of different things here. There was an outlying business case. Are you referring to the financial strategy on its own or the full business case? No, a national long-term financial strategy called for by Audit Scotland in 2013. I understand why you said that that was unrealistic, but we are now three years on from that. We still do not have it. That is fine. We were just in case we were confusing two different things there, so that is fine. If I could look at some of the things that were listed as priorities for the justice portfolio, the work with national and local partners through building our safer communities programme to reduce the number of victims of crime and unintentional injury, our focus on prevention and early intervention will be targeted at addressing and underlining the causes of crime and changing offending behaviour. Obviously, one of those partners will be Police Scotland. However, I notice that the budget for safer, stronger communities has been reduced dramatically both in real and cash terms. Could you perhaps comment how that fits in with the priority? I am referring to table 8.10, the safer and stronger communities, the level 3 funding. That is because the drug smith's use element of that budget has been transferred to health. I have taken the view that the issue of drug treatment is primarily not a criminal justice issue, it is a public health issue. If we wish to tackle the issue much more effectively in a co-ordinated fashion, it would be better if those resources were within the health portfolio in order to undertake that work, given that most of that work is undertaken by health agencies in the first place. The reduction that you are seeing is a result of transferring out of resource from the justice portfolio into the health portfolio for drug treatment. That will allow for a more co-ordinated approach to drug and alcohol treatment to be taken forward. That seems to assume that the vast majority—just about all the problems associated with safer communities—are drug related. We know that there are many reasons why communities sometimes feel under threat—anti-social behaviour at a lower end—organise serious crime and threats to communities through serious crime type activity. Are you confident that there is sufficient reduction in the budget to keep our communities safer from the wider threats that are undoubtedly out there? It is a reduction in our budget line because the money has transferred out of justice into health. Is that for drug treatment? Yes. The work around Police Scotland and other organisations take forward around enforcement, education and so on. All that work continues and will be supported. That was money specifically for drug treatment. I am of the view that that is a public health issue that is better placed within the health and wellbeing portfolio than within the justice portfolio. That is why that resource is transferred across. Building safer communities is just, by any other name, a drug prevention and tackling the causes of drug treatment, which is better in health. No. That was money that was specifically ring-fenced that the justice portfolio gave to health boards for the purposes of the treatment of those who— If you went down to level 4 on this year's budget, £33.2 million would be spent on drug treatment. That has just come out of this budget. It has been transferred across to health. I am of the view that drug treatment is an issue that is a public health matter. It is better placed there and to be managed there within health policy. The issue around tackling serious and organised crime that is associated with drugs, the issue about drug prevention work that takes place within communities and all that is mainstream stuff that is undertaken by Police Scotland. That will all continue as part of their normal day-to-day work. That was money that was very specific for drug treatment. There is nothing else that you would be concerned about under the safer and stronger communities budget or anything that might fall under that. Any activity that might fall under that is not sufficiently resourced. You are quite confident about that. I am confident that the right thing to do is that, given the way in which drug treatment is delivered at a local level, largely by or health service in their partners, that this is something that is better suited as being dealt with as a public health issue. I think that the member's point is that the 7.1 has not been any reduction to anything else that is done under that budget heading. In terms of the 7.1, there is not any transfer from any other project. I can understand the point that you are making, but there will be other things. Obviously, there is £7.1 million worth of other things being done under that budget headline. Has there been any reduction to those other parts? One of the things where there is a reduction is in the work around sectarianism. That was a four-year programme that was put in place, which has come to an end. That is the end of that four-year programme. The level of resource that has been allocated to that has been reduced. There is still money that is provided for that area of work, but the programme of work was planned over a four-year period, and it has come to the end of its four-year allocation period. Beyond that, the map reduction is the result of a transfer of resources. As of the next financial year, a change of approach will see health and wellbeing leading on the drug treatment area, which, as I say, is a public health issue. Finally, the UK Government has pledged to maintain the policing budget in real terms. The cabinet secretary has talked about protecting or maintaining the budget for front-line policing. Is it the same thing? No, it is in real terms. In real terms, yes. Front-line policing is the whole budget then? It is a revenue budget. It is a real-terms revenue budget. Is it the same thing, though? Front-line policing seems to suggest very focused police on the beat. What about support staff? It is the resource budget that we allocate to the SPA for the purposes of delivering Police Scotland, which has had real-terms protection. So it is all-encompassing? For the resource budget of the SPA, which goes to Police Scotland, yes. Margaret MacDonald indicated that her question has been asked. You mentioned the out-line business case, which is supposed to lend a pin to all of the reform. I have to disagree that that business case was credible. I think that it made a number of unsubstantiated claims and overoptimistic savings targets. I would ask you to agree that that view is held out because the reform fund was supposed to end at the end of this year, was it not? It was initially in the financial memorandum that we went alongside the legislation for a three-year period. The £55 million that you have had to find for the forthcoming year for reform is a recognition that your Government has miscalculated the level of savings that the reforms could achieve in that timescale. Is that correct? No. So why then have you allocated that extra fund? To what we have agreed is that we believe that we have gone through the major consolidation part of reform of Police Scotland in order to support the next phase of that. The Deputy First Minister has agreed that we should provide them with further funding in order to allow them to continue some areas of reform. There have already been very significant levels of savings that have been achieved by Police Scotland. For example, I have achieved a cumulative over which I would take them up to 2025-26, which is almost £880 million of savings that have been addressed. They are already making further progress in achieving £1.1 billion, which was the intended figure that they should achieve as a result of the savings that they would manage. Some of those earlier savings would argue that they have been rushed and they have thought through it. They will only need to think about control rooms and how we have had to put a bit of a break on some of those reforms. Is that reflected in that £55 million? In what sense? In the view that you need to slow down the reform roundabout control centres? No. We have provided some additional resource in year to assist Police Scotland in some of the challenges that we are facing around the call centre changes. The reform budget is not specific for that call centre or for that particular aspect of the service that has allowed them to identify as they are progressing and moving forward. There are areas where they want to achieve investment, which can allow them to operate more efficiently and more effectively and where they can achieve savings from that to give them some support in assisting them in achieving that. How will you release that extra money? The Audit Scotland report that others have referred to said that there needed to be greater transparency in how the bodies of the SPA and Police Scotland have, until now, used the reform funding. What assurance work have you done to review how that work, that earlier funding, was used? One of the pieces of work that the SPA undertakes is to make sure that the way in which any reform money is used is to deliver proper reform of the service. What will happen is that, for Police Scotland, if they identify an area where they wish to undertake further reform and they need some additional resource in year in order to support that, it is from them to then go to the SPA to set that out for the SPA to be very thorough in their detail in considering those matters. At that point, they will then be in a position where they can come to the Scottish Government to request access to some of that reform budget to support them in undertaking that work. However, I recognise the underlying point that the member is making around whether the reform budget is always delivering the level of reform that we would like to see it delivering. I think that there is an opportunity for us to make sure that we are utilising it as effectively as possible to deliver reform in a way that is improving the service overall. There is a process in place for them to access that money, that resource, and it will be there to help to support transformation and reform of the service. You have said that it is not for any specific projects and use for the SPA to come forward with bids into it, but you must have been able to quantify that money in some regard. What have you taken into account in coming to the figure of £55 million? I have looked at some of the areas where the police need to make some further investment, particularly capital investment, in order to improve the way in which the service is operating. There is no doubt that ICT is one of those areas where further investment would support them in helping to reduce bureaucracy and to promote greater efficiency and to free up officers' time as well. That is an area in which we want to continue to provide them with support. We are also, as you will be aware, from the call centre review that was undertaken by HMICS, which highlighted issues around the ICT systems and so on. It is helping to improve and we are looking at how they want to improve that. If they saw that there was an issue around capital investment into ICT provision in that area, that is something that would reform and improve the way in which the service is operating. It would be an opportunity for them to look at identifying areas there. One of the big areas where there can be further improvement is particularly around ICT. The other aspect is that there can be in-year demands that come up that we are not anticipated, but it might come along as an opportunity where some further investment at an early stage could realise better improvements. It allows us to have some flexibility and be able to meet some of those in-year demands that may occur as a result of a changing practice or a particular issue being flagged up. Can I have your assurance, cabinet secretary, that the community safety and the safety of the citizens of Scotland will be at the heart of any of those future efficiencies and that you will not be driven too fast and too quick? Oh, that is absolutely crucial. It is central to it. I do not think that there should be any doubt that this Government, the SPA or Police Scotland are all signed up to making sure that our primary objective is the safety and the security of citizens of Scotland and to do that. I think that there are clearly lessons that can be learned from some of the way in which changes have been taken forward in the past. For example, in the call centres, the recommendation that a gateway review should have been undertaken prior to that being progressed is a very clear, concrete example of where lessons can be learned when you are changing aspects of the service and what we need to do is to make sure that those types of lessons are being properly learned and implemented in the future. I can give you an absolute assurance that that is. We are committed to ensuring that Police Scotland and the SPA are completely focused on alongside making sure that we can learn from issues in the past that we do. One final question from Roddie Campbell. We will move on to the fire service. Thank you, convener. It is just a couple of points on the reform budget. When Deputy Chief Constable Richardson gave evidence, he talked about the initial phase of reform being trying to maintain core services and to consolidate. That was the phase that brought various organisations into a single operating entity. However, the next stage of the journey is around what might be better understood as the transformative activity that involves changing processes and doing things differently, being slicker and sharper. Would you agree with that comment? Is that something that we would look forward to seeing significant savings on over the next five years? That is absolutely no doubt. Over almost three years, there has been a very significant level of consolidating different approaches and eight different legacy forces. At one point, with eight different legacy forces, there were 18 different computer systems used for different aspects of the service, some of which did not communicate with each other, because different legacy forces had taken a different approach to different issues. There have obviously been significant challenges in drawing some of those issues together. I think that there has been a very significant level of transformations taking place already over the initial three-year period. Deputy Chief Constable Richardson is correct in that there is an opportunity, I believe, in going forward over the next couple of years to see further transformation that delivers better improvements for the public and how it responds to public demand and public need and, equally, improves greater efficiency within the services. Just to give you an example, there are various aspects of our public services that procure a whole range of different issues. I get no doubt that there is greater collaboration between the public sector, which is already happening, but taking further can help to support greater efficiency in procurement and incorporating with one another on how to go about some of the changes that they are taking forward. Thank you and just a quick point. Are you happy with the budget for PERC and HMICS, given the kind of considerable role that both of those organisations take for some time? For PERC, which is also part of, which is one of the elements within the police central government budget as well, there is actually an increase in their budget line, which will support them in terms of some accommodation and staffing levels as well. We will provide them with financial increases this year. The HMICS is broadly able to operate within the resources that it has at the present moment. There has been no indication of any need for any increase in resources, but we have provided additional allocation to PERC to support them because of the changing nature of the demand that they have faced over recent times. I invite members' questions on the budget for the fine rescue service. Good morning, cabinet secretary, and a happy new year to you. Maybe we didn't say that at the outset, but this year has been quite challenging for our emergency services. Some of us in the committee will have spent some time with firefighters—partly with firefighters—in the floodings and with the police as well, very much present. I spend a lot of time with both firefighters and fire services. Regarding the budget, you would think that police officers would be delighted with the latest response from the Scottish Government, with some reassurances not only for this budget but for five years ahead. I don't think we've got the same level of reassurances for the fire services. As much as the Scottish fire rescue services suggested by the flood cash budget settlement for 1617 could be managed by the fire service, cash reduction would be extremely challenging. We may have a problem with keeping the other side with the years to come. Are you confident that at least this level of funding will be adequate for 1617 and have you got anything in line for the years after the same thing that you did for the police? We will obviously deal with the fire service budget in the next phase of the budget round. However, in relation to this particular financial year 1617, I believe that it is a budget that is manageable in continuing to make progress around the reform of the Scottish fire and rescue service. As you heard from the chief fire officer, Alasdair Haywein, he gave evidence to you that a flood cash settlement would be manageable. That is what we have delivered for them in this financial year. Having said that, I fully recognise that public sector organisations will find it challenging in general, given the overall squeeze that there are on public sector budgets. That is why we need to be very vigilant in making sure that we are achieving as much efficiency as we can and how we progress reform in those organisations. The fire and rescue service will be no different to any other aspect of the public sector in having to make sure that we are operating as efficiently and effectively as possible while delivering the best standard of service that we can to the people of Scotland. It would be fair to say that the way in which the fire and rescue service has operated over the last week or so, given the significant demands that the borders and the north-east have been exemplary. They have discharged that responsibility to a tremendously high standard and have been able to operate in a way that has allowed them to flex resource in a way that would have been more challenging with the previous set-up. It is a national force that has been able to move resource in a way that has allowed them greater flexibility to meet that demand in particular areas. You talked about exploring opportunities for the fire service to make a wider contribution to public services. We heard from the Fire Brigade Union that discussions were in place to widen the role of firefighters, particularly regarding medical emergencies that we know in other countries. Can you expand on what you have in mind as part of the wider contribution and particularly will we need additional funding to be part of those discussions? I think that the nature and the role of the fire service has been changing over a number of years now in the areas of work that they are engaged in. For example, have you looked historically at the way in which they have increasingly been involved in road traffic accidents and inland water rescues? The way in which that has expanded over a number of years now is an example of the way in which the service has evolved to meet some of the demands that were being placed on that. One of the areas in which we are keen to see a greater collaboration in working with is around work with the Scottish Ambulance Service. Some of that is not about additional financial resource as such, but it is about using the resource that we have at the present time in a slightly different way to be able to respond to things. For example, when I was Minister for Public Health, I was keen in pursuing the whole issue of out-of-hospital cardiac arrest. We know the statistics greatly improved in terms of survival rates if we can get someone who is properly trained with a defibrillator as early as possible. If you look at places such as Seattle or America, which is a gold standard internationally, by using much quicker ways of responding to these incidents and getting someone there with a defibrillator much more quickly, it can help to improve the survival rate for that particular patient. We have a couple of pilots that we are running with the final rescue service of the back of the strategy that I initiated as Minister for Public Health around out-of-hospital cardiac arrest, where we are working with the local fire service in three areas in order to look at how they can assist the Scottish Ambulance Service in responding to out-of-hospital cardiac arrest. That is not about taking firefighters away from the duties that they are normally doing. That will be if there is a fire appliance available that has a defibrillator on it, which will be able to reach that individual more quickly than the ambulance will be able to get there and deploy that resource. It is a resource that we would otherwise not be getting used at that particular point. It is about trying to help to close down some of those gaps and maximising the use of the resources that are there. That type of collaboration has a benefit to the public and makes much better use of our public sector resources in meeting the demands of some of those needs. I do understand this, but there is a question that you said earlier on that you took some of the resources and you moved them to the National Health Service for very good reason. There will be a reason that the Scottish Fire Service could see that. There will be a reason that if the scope is large about what firefighters could be, some of the resources could come from the National Health Service and move to the Scottish Fire Service. I do not think that there should be a discussion about the extra level of funding coming, maybe not from your own Cabinet Secretary, but from another Cabinet Secretary. That needs to be explored. That sounds like a pitch for some money coming into justice from health. We have the three pilots. We need to see how they progress and evaluate them, and to see what progress has been made with them to then understand whether there are any marked resource implications that could come about as a result of them. We could explore that. It is a good example of the reality that money is all coming from the same pot and allocated into different portfolios. If it delivers better outcomes for the public, then we have all got a collective responsibility to make sure that we are working across Government to utilise that resource to the best effect that we can to deliver the best possible services. Once we have evaluated the three pilots, I cannot remember exactly where they are. As ever, there is always one in the Borders, Aberdeenshire and Dundee. I think it is in the Dundee area, the three areas we are trialling this out. We can evaluate that and see where that goes from. The additional funding could have an impact on the number of fighters, particularly in one of the rural communities that have been affected by flooding. That would be a reassurance that, if we could put that in future budgets, it would be very important. Not only this, we were talking about VAT earlier. We have been told that if we had the VAT back, it could add 350 firefighters. If we do not get that money back to keep that level of firefighters that we need for the emergency services, I would ask you to consider it for the budget coming. I appreciate the point that you are making. I am very mindful of the fact that, even with those pilots, we cannot see additional areas of responsibility that result in having a negative impact on their core responsibility in the fan rescue service. What we are trying to do is to make sure that they continue to deliver their core responsibilities. Is there scope in there to utilise highly trained firefighters and the resources that are deployed across our communities more effectively to help to support greater community safety and greater community cohesion? If we can look at how we can use that resource more effectively to help to deliver that, let us explore that. A bit of hospital cardiac arrest pilots are practical examples of us moving into that area, which could have a significant impact in helping to improve saving lives and promoting community safety. It is worth keeping in mind that the level of community safety work that the fire service undertakes is very significant, whether it be visiting properties to install smoke detectors, etc. It is a big part of their prevention work and a very detailed part of their prevention work that has allowed us to see the reductions that we have in fire fatalities as a result of that. The fire service no longer works on the basis that it is about just going to fight fires. It is also about prevention and reducing that risk. Some of the work-around, if they are going into a house to do a fire assessment, is an elderly person with a smoke detector. They can also undertake some work there in looking at trip risks, which again, an elderly person at home having fallen, injuring themselves, potentially fracturing their hip, something like that. I saw it previously in my professional career, somebody is managing fine at home, fractured hip into hospital, they have to have a hip replacement, their mobility may never recover, they can end up getting complications well in the hospital and you can sadly see a downward spiral in that person's independence as a result. While they are in the house, are there other things that they can identify and if so, then refer it on to another agency who could pick up some of these issues. Trying to maximise the use of that resource and their skills is best we can to try and help to support some of these community safety measures. In relation to the rationalisation of control rooms, a submission from the Fibrig aid union argued for resources to ensure the successful delivery of what it described as a high-risk project. The concerns being around less staff covering a wider geographic area and the loss of local knowledge in the area. What is the Scottish Government doing to ensure that problems do not arise? The Scottish Farm and Rescue Service has undertaken a very significant level of work in planning around moving to the three control room model, which is in Edinburgh, Johnston and Dundee. That programme will be completed in the Libby 2015. Part of that work has already been taken forward with the Johnston control room, which the control room in Dumfries has already been transferred in November of last year. It has already opened and upgraded and enhanced the control room in Edinburgh, which was completed just back in November of last year. The Madison control room will be merging with the control room in Edinburgh on a phase basis during January of this year. It will be completed due to the end of January this month. That will then follow with the merger of the Thornton control room over the next couple of months. It has taken forward a range of different measures in order to, for example, have the system running in shadow to one another in order to make sure that the new approach is working effectively and efficiently. It has taken forward a range of different measures in order to try to help to reduce the risk of any potential problems with its control rooms. Progress today has indicated that that has been managed. It has been an area of work that has been planned for a considerable period of time and has been implemented over a period of time in order to ensure that the public continue to receive the quality of service that they expect. One of the concerns that the union raised was around training and evaluation, and that that might be compromised as part of the rationalisation. Can you assure me today that that has been addressed? My understanding is that all staff in the control rooms are trained for the purposes of managing the system. That is part of the on-going work that the Scottish Fire and Rescue Service has taken forward. I have no direct indication of that, given that it is already part of the transfer that there have been issues around the training of staff. However, part of the on-going work as the transfer takes place is the continued training of staff in operating the system. Do you think that the resources are adequate to carry out that training? The Scottish Fire and Rescue Service has already taken that forward. It is not something that is about to start. It is already part of the work that is already undertaken with some of the control rooms. As I mentioned, there is already the Dumfries control room having transferred to Johnston having taken place. The Madison and Edinburgh work is already moving forward at the present moment. It is an area where it has already demonstrated that that transfer can be managed effectively and efficiently. Staff are being properly trained in order to make sure that the system is worth keeping in mind that the volume of calls that the Scottish Fire and Rescue Service deals with compared to that of the Scottish Police Service is significantly different. The other difference between the call centres that we have in the Scottish Fire and Rescue Services is that there are only 999 calls that they are dealing with. They do not have an equivalent 101 in the way in which Police Scotland has where they have 101 and 999 calls. The volume and some of the complications around them are significantly different. However, they have already been managed in the service and the transfer over effectively and there is no indication as to any anticipated further problems as they move forward. Just before we move on to the court service, the Scottish Government assists the SPA with its VAT liability but does not assist the Scottish Fire and Rescue Service? Can you explain why that is? The Scottish Fire and Rescue Service is made within their resource budget. That was a matter that was agreed with them previously. They would meet that additional cost from within their on-going resource budget. It is the same provision that we have made within this financial settlement. In a quick point, the number of fires last year that were attended to by the Fire and Rescue Service was down 11 per cent. Do we have now the right number of firefighters because the number of firefighters has also been reduced over the last few years? Any comments on that generally and whether the budget provides for enough firefighters? The resource configuration is a process that is taken forward for firefighters. It is a process that is taken forward between the Scottish Fire and Rescue Service and the Fire Brigades Union. There are some issues, for example, in the north-east, where there have been some issues. It is not so much that the Scottish Fire and Rescue Service does not have enough firefighters, but that it does not have enough of them in some of the different parts of the country. Overall, they have the right numbers, but they are not necessarily all in the right places. They have an interim arrangement in place with the Fire Brigades Union to allow them to be able to move some firefighters' areas in order to help to meet where there have been some gaps. They are working with the FBU on a resource allocation model, which will help to make sure that there are sustainable numbers across the country. What we need to do is make sure that we have the right firefighters in the right place in order to meet the demand that they face. There is, of course, a very large part of the country that is covered by retained firefighters. Clearly, there is work being undertaken just now by the Scottish Fire and Rescue Service in order to revisit the approach that they are utilising in the way in which they are providing retained cover in order to make sure that it is able to meet the demands that are going forward in future years. That is a very significant piece of work that has been undertaken. I know that the chief fire officer on a number of occasions wants to make sure that it is more suited to the types of demands that have been placed on the service in rural communities today. I have volunteers for questions on the Crown Office and Procurator Fiscal Service. I also indicate that, in five minutes, we will be overrunning this particular session, so I will concise questions and answers if at all possible. Thank you, convener. Cabinet Secretary, we have growing confidence in the criminal justice system, both the police service and the prosecution service, which has seen a great number of historic sexual abuse inquiries come to light. There is an increased number of solemn cases, there is a prioritisation of domestic cases, and there is an increased role for the Crown Office Procurator Fiscal Service in relation to victims. We have heard from the inspector of prosecution about the challenges that have been faced. The FDA union talked about the pressures faced by prosecution staff, stating that we do not consider it to be reasonable or achievable to continue to expect the service to deliver more with less. We will shortly take evidence from you on more legislation in which we will create more work. I am aware of alternatives to prosecution and I am aware of the fiscal fines and direct measures that are in place, but is it really sustainable at the level of budget and the increased workload that is coming the way? You are right to say that there is growing confidence among certain groups of victims of crime to report certain matters. It is also a reflection on the significant changing approach that our police service now takes to some of those issues. For example, when domestic violence matters are reported by one individual, they will then look for previous partners in order to see whether domestic violence in the past can result in a number of victims having cases brought before the court, which has clearly created pressures on the court system because, very often, by the very nature of those types of offences, early pleas are not often entered, which results in them going to trial. We have recognised that. In the year 2013-14-15, we provided additional resources of £1.47 million, which was to help to support both the courts and prosecution services in order to meet the judiciary and the additional demands that they were facing in the year. In 2015-16, we provided an additional £2.4 million in order to support further work for both the prosecution services and our courts to meet that additional demand. Over the past two years alone, we have provided almost £4 million of additional resources to help to meet some of those in-year demands that they can experience on the court service. Clearly, prosecution services are like any other part of our public services in that they have to operate within the financial budget that is set for them. I am confident that they will be able to manage that as effectively as they can. Clearly, in terms of how that then is taken forward within the services of matter for the Lord Advocate and how he then takes his issues forward that is independent of Government, but I am confident that they will manage within the budget that has been set for them to try it. What we will do is continue to monitor those things through the justice board to look at any changes in demand that have been experienced in the year and how we can get agencies working much more effectively together to help to offset some of the challenges that they are facing. We have got greater co-operation taking place and we will continue to do that going forward. There has been a budgetary fall in the provision in real terms both in case-related work in real and cash terms and the overall budget for the Crown and Procurator Fiscal. If the Scottish Government is legislating on issues such as domestic abuse and human trafficking, which we all welcome, is it not just only fair and reasonable and vital that those at the sharp point of delivering the consequences of the legislation are adequately resourced to carry out the work and make sure that the policy is a success? As you will be aware, with any piece of legislation, we publish a financial memorandum that sets out what are the anticipated financial implications of that legislation. For example, we have set that out for the bill that we are going to discuss later on this morning as to what the financial implications will be, the likely levels of prosecution. There will be or are cases that could end up in the courts that there could be in the course of a year and we look at providing resources in order to try and meet those needs when we bring forward legislation. It would be wrong to give the impression that when we bring forward any legislation that makes additional provisions within our criminal justice system that we do not provide additional resources to meet some of those demands. I do not think that anyone is disputing that, but it is the greater volume of complex and serious cases that have materialised, which I think that they are saying quite reasonably, Catherine Dreier is saying. We are coping just, maybe, and the FDA is saying that it is unreasonable to do so much more to deal with those more complex cases with less. That is why, over the past two years, we have provided additional resources to help to support both the Crown Procurator Fiscal Service and the courts to meet some of those increasingly complex cases. I know, for example, that there can be complex, detailed matters that can take a significant level of investigation by the Crown Office and Procurator Fiscal Service, and that is why we have provided a new year addition resource to help to meet some of the additional demands that they are facing and to provide additional resources to the courts in order to deal with the additional demand that they face as a result of those cases that have been brought before them. Despite the kind of reports that we have had about staff morale, et cetera, in the Crown Procurator Fiscal, people under an intolerable strain, it would be your contention that you think that the Crown Procurator Fiscal is adequately, that the service is adequately resourced? I am confident that they will be able to operate within the budget that the Lord Advocate has agreed, and that they will take that forward on how they best believe that that can be achieved within their particular service. I am always very keen to make sure that we have all the different parts of our justice system operating collectively together as best we can. I am always conscious that, if you do one part in a system that will have an impact and in another part of a system that we try to make sure that there is greater forward planning in these matters, which is what the justice board does and is working to try to help to collaborate on those types of issues. I have no doubt that if you were to ask any part of the public sector, would you like more money? They would say yes. I do not suspect that there are many cabinet secretaries who would not want more money in their portfolio. I am confident that the budget that has been negotiated, as you are aware, that the Lord Advocate negotiates a budget with the Deputy First Minister rather than myself, is that they will be able to manage within the budget that has been set for them, which, as you pointed out, is a flat cash settlement? The point that you make—I am quite sure that all public services would warmly welcome more money and even argue that they need it—is that the Crown and Procurator Fiscal Service has been at the cutting edge of Government priorities in domestic abuse cases and in trafficking, which we welcome. It was the extent to which cognisance has been taken of that and the impact that it has had on the fiscal service, but I do not think that we are going to get much further with that line. I will ask you then, finally, for the prosecution service to work efficiently. There are other elements of the justice system that must be adequately resourced, however, there is a 7 per cent cash-term reduction in legal aid, which will undoubtedly impact on the work of defence lawyers funding through the legal aid system. How will that be managed without it having a negative impact on the justice system? One of the things that we have sought not to do is to take the approach that has been taken forward in other parts of England and Wales, for example, in restricting access to legal aid through reducing provision, for example, in civil matters. We want to maintain as open access to the legal aid provision in Scotland as we can. We are working to make sure that we continue to make sure that those who are eligible for legal aid get access to it. What we need to do is to make sure that it is operating as efficiently and effectively as possible. We are already undertaking work in order to look at how we can model the way in which some parts of our court system are operating to ensure that it is operating as efficiently and effectively as possible, because some of the delays and some of the challenges around the way in which they are operating have significant costs, which have been incurred as a result through some aspects of legal aid. What we will be doing is working with the legal profession, with others within the justice board, to make sure that the legal aid system is operating as efficiently and effectively as possible and that we are looking at how we can adjust and adapt some aspects of our justice system to make sure that they are operating as efficiently and effectively as possible, given the consequences that delays can actually have in costs to areas such as legal aid provision. Do you have a for example? It is an area of work that we are taking forward at the present moment, and no doubt when we have got more detail around that, we will look at providing the committee with that information, but it is an area of work that we are actively looking at at the present time. I think that the committee would warmly welcome the further detail. Just to return to the additional resources that you have given over the last two years, you said that £1.7 million in 2014-15 and rising over the two years to £4 million, so increasing resources required in year but delivered on a sort of ad hoc basis. Would you agree that if resources are again required this forthcoming year on that scale that it was perhaps important to review the base budget? I mean, what you can only do when you provide in year resources is only to put a temporary stick-and-plaster on it, so you have not got the ability to perhaps bring in specialist professionals who can work over the period on it? It is worth keeping in mind that, although I am discussing the Crown Office and Procurator Fiscal's budget, that additional resource was not purely for the Crown Office and Procurator Fiscal Service, it was for different parts of it, so some of it went to the Scottish Court Service to support them as well into undertaking some of the work and additional capacity that they required, so it was to reflect some of that. That came about as a result of the partnership that we have got through the Justice Board in flagging up that they were experiencing some pressures as a result of another aspect of the system taking a different approach, and it was to offer some flexibility and will continue to remain live to that. Obviously, come the budget process for the 2017-18 period, then any further changes can be reflected on at that particular point, but we will continue to remain alive to where we feel there is and need to have some level of flexibility to support where we can reasonably do that. I mean, I think that the Justice Board approach is an interesting one, and I used to go away to join things up. Has it got access to a change fund, for example? There are. They don't have a budget as in that they allocate themselves as such. We have obviously the reduced re-offending change fund, which has been used over several years now in order to amend or to improve how we deal with some of the issues around re-offending, but they don't have a specific budget that they would be responsible for allocating directly. It is more about bringing a collaboration together to look at where there are different aspects of the system that can work much more effectively. You have got from the reporter to the children's hearing system in Scotland right through to the chief constable and senior officers through to senior figures within the judiciary, to senior figures from within the Crown Office and senior figures from the justice director, all working collaboratively in order to try to make sure that we are joining up as much as we can, because it has been a tenancy in the past for different bits of the system to be operating in a way without recognising the impact of having other parts of the system, and the justice board's responsibilities to help to bring that together more effectively. OK, that's helpful, thank you. Thanks. Margaret Williams will indicate that her question has been asked. Thank you, convener. Perhaps I can just refer to my register of interests as a member of the Faculty of Advocates. Just a quick point on legal aid. Legal aid budget is under pressure. Are the concerns of people who think that that might lead to a reduction in the grants of criminal legal aid justified? What's your response to that? For individual cases. The purpose is to maintain access to legal aid in the way in which it is at the present moment, and across the legal aid provisions that we have, what we want to achieve is to achieve greater efficiency in the way in which it's operating. Thank you. I propose, since we have a longish session next, that we take a five minute break to stretch our legs, such as a suspend for five minutes, please. Thank you very much. We will now resume with item 5, the abusive behaviour and sexual harm Scotland Bill. This is the final evidence session, and the cabinet secretary is staying with us for this item, and I welcome the Scottish Government officials Philip Lamont, criminal justice division, Patrick Down from the criminal justice division, Ian Fleming from the safer communities division and Gavin Scott from the directorate from legal services. We had an indication that the cabinet secretary doesn't wish to make an opening statement, but just ask him to confirm that. What I was going to propose on this, because there are obviously six different sections within the bill, the most conflicting evidence that we've had have been on judicial directions and what was called the Venge Porn, but we're not actually supposed to call it that. The new offence of disclosing or threatening disclose and intimate photograph or film, so I was going to propose taking questions on those sections first and then going on to the other six areas that the bill covers. If I could ask members for questions on the judicial directions first Margaret, John Finlay and Gil Patterson. As the convener indicated, witnesses have expressed concern about the introduction of statutory jury directions and sexual offences cases, particularly with regard to undermining the independence of the judiciary. Does the cabinet secretary share those concerns? No, I don't share the concerns. I will understand the comments and the evidence that the committee has received on those matters. I believe that the provisions that we've created in the bill provide judges with sufficient flexibility around when they should issue direction to the jury. It's worth keeping in mind as well as that there are other times when judges issue directions to the juries as well, particularly if there's been expert evidence, etc. I don't believe that this is interfering with the judiciary in a way that compromises their independence. I think that the provisions in the bill provide sufficient flexibility for them in being able to give direction as when it's necessary and to give them a level of flexibility in how that's put to the jury. You've mentioned expert evidence being led. That seems to me a perfect way around it. You have someone explaining those points that it isn't always the case and that if there's a delay in reporting that this indicates a false claim. The expert evidence is explaining that. If there's some judicial direction, that seems reasonable, but to do it without that expert evidence doesn't? Expert evidence will be taken in many cases in issues. At that time, I would have caught if expert evidence is taken clearly that the judge will consider giving direction to the jury, but it might always be the case that there will be expert evidence. It's important that we ensure that in particular types of cases, given when a particular type of evidence is led and issues are raised in it, that we have a provision in place that ensures that judges give direction to the jury. Now, it might be that some judges are already giving some aspects of direction to juries on those matters and some may choose not to. My view is that we should put it on a statutory footing, so we're very clear about when that should be provided, but to give the judges the flexibility to put that to the jury in a way that they consider most appropriate. You've mentioned that expert evidence may be led. We've got a very clear steer, both from the Crown and Procurator Fiscal Service and from Lord Calaway, that the cost of providing expert evidence would be prohibitive and, therefore, there would be a very real possibility that that would not be led and that it would be replaced instead with statutory jury directions, which no one seems very happy with. Lord Calaway did mention the option of something being within judicial knowledge. Also raised is the possibility of putting guidance in the form or mentioning it simply under the model directions contained in the Scottish jury manual. Are those kind of compromises, if you like, or adjustments that could be looked at to the provision in order to safeguard the very real concern about compromising the independence of the judiciary and setting a precedent? The first thing to be very clear here is that the bill doesn't do anything that affects the ability for expert evidence to be taken forward in a case. It may be that, if the Crown choose to introduce expert evidence in relation to a particular case, for example, if it relates to a lack of physical force when a rape is being carried out, the bill doesn't affect in any way that from happening. It may be that a combination of expert evidence and jury direction will sit alongside one another, but in no way inhibits that or prevents that from happening at all. The bill doesn't make any provision to prevent expert evidence from being led or changes that in any way. You have no concerns that cost would come into this in the slightest. In fact, is not the cost of providing an expert witness, which seems to me the way around this. There you are, the witness giving the evidence that, because something is delayed in reporting, because someone has not used force, because of all those things, experience tells us, we have sound evidence, all of that sounds to me the very best way to do it, but what has been mentioned as a barrier to using that expert evidence is the cost of providing it. It is out there, being raised, and it would be unwise to dismiss it and say that, if we need an expert witness, they will be brought in when there are such problems and concerns about budgets. The point that I am making is that the bill does not change anything around a decision to bring in an expert witness on a particular issue in a case. If the suggestion is that we are introducing it because, in some way, it is less costly, it is simply not the case, it is about making sure that we take forward an area that we have identified and, as you will be aware, many stakeholders are supportive of, particularly those who work with victims of these particular types of crimes, that there is a need to make sure that duties have a clear understanding of some of the issues around evidence that may be led in the course of a particular trial. However, the jury directions are very restricted to several areas, should those issues be raised in the course of the trial and there is sufficient flexibility in there that, if it is not in a context that requires jury direction and the judge does not require to give jury direction. You are quite confident that, if that provision is introduced, there will not be calls to have similar provisions for other perceived misconceptions? Parliament in the past has taken a view around areas of the law, which we believe require specific measures to be taken forward. An issue around sexual offences, particularly around rape trial matters, is an area in which it was identified that there were concerns about certain preconceived, potentially preconceived ideas or views about particular aspects of evidence that can be led in a trial whether there was resistance, whether there was a delay in reporting that could have an impact on the jury without proper understanding of those circumstances and part of the reason behind making provision for jury direction is to help to address that particular issue. It is not unique, as I say, in that jury directions are given in other areas by judges that have developed over the years. There are other jurisdictions in the world that have jury directions in those particular areas around sexual offences in order to address the particular issues that arise around those types of crimes. Lord Calaway covered that point, and he acknowledged that, while it existed in other jury directions, it was far from ideal. At stage 2, the cabinet secretary may reflect on that. Is there a possibility that you will look at some of the evidence that we have taken from academics, from the judiciary? I will look at all the evidence and consider all the views that have been considered on that issue, but we are very clear in terms of our position around jury direction. I have already considered the evidence that you received from Lord Calaway and other members in your round table discussion with them when they attended the committee. I am also very mindful of the victims organisations that are very supportive of jury directions. We considered many of those issues in drafting the bill. We came to the view that jury directions were an appropriate route for us to go down. That is why we have brought it forward within that particular piece of legislation. We will always look at the evidence that the committee received and, of course, the Justice Committee's stage 1 report. However, there are a number of issues that have been highlighted by witnesses who are not in favour of jury directions. Those are issues that we considered prior to the drafting of the bill. Cabinet secretary, if the issues of delay in telling people on the physical resistance or the absence thereof are widely acknowledged and seem to be, why would the faculty of advocates and law societies not support the approach that you are suggesting? It is not for me to answer on behalf of the faculty of the Lollate. I do not think that it is fair for me to speculate on what their views are and why that is. I think that it is better that the faculty of advocates and the law society explain their position to you, as I believe that they already have in their view. We believe that this is an appropriate measure in order to try to help to address some of the issues that we have around those types of cases being before our courts. For many members of the committee, this is not a new issue. It has been flagged up for a considerable number of years in the way in which those areas can be played out during the course of a trial, and concerns have been expressed in the past about the need to address this issue much more effectively. Going back to the point that was made by Margaret Mitchell, it is an issue that may be within judicial knowledge. That may be the case. I am not aware, though, over recent years of clear action being taken to ensure that those issues are properly addressed. I believe that that lack of innovation merits the introduction of the statutory provision in order to address what has been a long-standing issue of concern for many organisations that work, particularly with women who experience those types of offences, in order to make sure that there is a clear direction given to the jury when particular issues are raised in the course of the trial. If you saw Lord Calderby's evidence, you would know that he was very open with himself and my colleague Anderson MacKinnon about a particular case that we had concerns about. He was also very diplomatic, because he clearly did not want to say it, but there was a right. Let me on the statement. I sensed that he resented political interference on the independence of the judiciary. Do you think that that was a reasonable summary of his position? That is an issue for Parliament to consider. If we as a Parliament consider that there is merit and justification in applying jury directions in statute that can be applied in certain circumstances, I believe that that is a reasonable course of action for us to take in order to deal with particular issues within our justice system. Parliament makes decisions that have an impact on the judiciary on a regular basis in various matters. I do not believe that this is political interference in a way that is directing a judge on what they should say or should not say. What it does is it sets down the criteria, as in certain circumstances. If those issues are raised and it is appropriate, there is sufficient flexibility for the judge to choose to issue jury direction and to do so in a way that they believe is most appropriate to the circumstances that they have heard before them. It does not specify what they have to say. That gives them sufficient flexibility for them to be able to do that, reflecting on the evidence that they have heard before the committee when they are charging the jury. The position that my colleague Margaret Mitchell talked about with the crown leading an expert witness, is that not more inherently fair to the accused because it gives the accused representative the opportunity to cross-examine, which clearly they will not have if it is a judge's direction? As I said, the bill makes no provision that would stop the leading of expert evidence as well. It does not alter that. It may very well be that where you have expert evidence led, there will also be a jury direction off of that as well. It is important that we give enough flexibility to the judiciary to make sure that what they are saying to the direction that they are giving to the jury reflects the circumstances that they have heard and the evidence that has been led at that particular trial. That is what the bill makes provision for. It gives them sufficient flexibility to be able to do that. The Law Society talks about unfairness if this provision is exclusively to relate to sexual offences. Indeed, it will not linger on it, but it gives the example of corroboration applying or not applying to some particular cases. Is the Scottish Government so concerned about using the word victim with the frequency that it does that there is a danger that it is setting aside hard fought for rights that accused people rightly have? That is why we have tried to give a balance to this in terms of the limited circumstances as and when, as you will be aware within the bill that sets down when jury direction should be issued but also giving sufficient flexibility to the judge to determine whether that is necessary depending on what they have heard before the court itself and what that specific direction is to the jury. We have sought to make sure that we provide a balance to give them sufficient flexibility at the same time to address an area where there has been concern for some time around how certain information can be presented in court and how that can then have an impact on the trial. Finally, what assessment of any has been made about the likely increase in appeals against conviction as a result of the introduction of this? It is very difficult to assess that type of thing and how many appeals there may be as a result of any change in legislation because appeals could be for a whole variety of means. It is not something that you can realistically project prior to a piece of legislation being implemented. It is not unrealistic to say that that is a factor that you could anticipate. It is an additional factor that could be the subject of an appeal. Of course, a piece of legislation could come in and the defence may seek an appeal as a result of the direction that has been issued by a judge. That could happen, but it is very difficult to quantify exactly how many cases may come across or may come about as a result of that. I think that it is fair to say, cabinet secretary, that there is some research in regard to how juries react to cases of rape, but it is very sparing indeed. However, I think that it is with regards to the content of court act in 1981 prohibiting research being carried out with real live jurors. However, professors Vanessa Monroe and Louise Ellison conducted a study using mock jurors. That showed that jurors expected particular reactions by rape victims, the expected visible display of emotion and normal would be to struggle physically. The two professors said that sums up their study. Overall, while jurors in the no education trials paid lip service to the notion that different people will react differently to traumatic experiences such as rape, assumptions regarding the instincts to fight back the compulsion to report immediately and the inability to control one's emotions continue to influence deliberations. I know that this is in line with concerns that are expressed over many years by women's groups that jurors in rape trials are influenced by their own prejudices and pre-concerned notions of how people react in those trials. I am wondering what that will do to overcome those prejudices. Part of the research that Gil Paterson referred to has highlighted some of the issues around concerns about some of the preconceived ideals and views that jurors can have in those particular types of offences, which was part of the reason why we have gone down this particular route around looking at making a statutory provision in particular sets of circumstances where the judge will be required to give a jury direction on those matters in order to address those types of issues much more effectively and to make sure that some of the research that the member made reference to some of those preconceived ideals and issues can be much more effectively addressed prior to the time when the jury are being charged. The jury directions are a very specific way in which we can address the issues that Gil Paterson has highlighted both from the research and also from the victims organisations who have been raising the issue for some time now. Maybe I should have declared an interest in my former member of a board member of rape crisis and common currency within that fraternity was the notion that the trial didn't proceed or it failed on the basis that the jury itself had preconceived ideas as I've already expressed that people should react in a particular fashion if they had been raped particularly at the trial and they should notionally show these emotions in a way that is predictable. If that is the case, is there not a need for wider education, is there not a need for not just this bill being in place and jury directions being in place, is there not a need a need for wider education, some money spent to just to highlight these points that people do react differently and for instance in the trade that I'm in, the motor trade, and I know this from personal experience, if somebody has a bump in their car and they turn up to a reception error to get the car repaired, some people including men can be very very emotional and some people are very calm about it so people react in all different ways and I think that the Government should consider, well would the Government consider an education programme to highlight how people react in different circumstances? I'm happy to look at that further and to explore that further. It's very difficult to do anything around jury aspects as well because of the contempt of contact and as a committee will be aware from a previous appearance on the Lord Barnumys report is that we are looking at taking forward jury research into some wider aspects around how our juries operate and that approach will be largely based on academic experience from elsewhere where they've been able to undertake this type of research in other places. In our earlier session when I was being asked about the Crown Office and Procurator Fiscal Service demands on the system and John Finnie raised the very issue around historical cases as well and we have an increasing number of historical cases being reported. Now the factor that may not have been reported in recent times doesn't actually mean that the offence didn't take place. There can be a whole range of circumstances that could lead to that so I think it's important that we don't lose sight of what we're trying to achieve here and that is it's not to try and create an advantage for the defence or a disadvantage for the accused it's to make sure that some of the underlying research that we know indicates that people can enter into these types of issues with some misconceived ideas around some of these particular issues around timing etc a wind of reported and for the judge where that becomes an issue within the actual trial to also be able to issue direction to the jury to be able to explain is that the fact that there was a delay doesn't mean that the offence didn't take place and that that delay wasn't necessarily material to to their decision making on this matter. I'm more than happy to look at the issue around what further education would look like and given Gil Patiss's own personal interest in this issue over many years would you call I'd be more than happy to discuss that with you further? One of the questions opposed to Lord Calaway was if not regarding rape but if a juror had indicated some prejudice what reaction would it be and I think I don't want to use words in these mouths because but I think he said he would take action on that juror and yet it would seem that jurors quite a section of a jury would have prejudice automatically before a trial starts so my question would be it's not this is this not about preferring one against the other this is about a level playing field and educating a jury itself is this not what it's about educating a jury that people don't all react in the same fashion if they have been seriously assaulted in a sexual fashion well it's it is to make sure that the jury have an understanding on whether evidence has been laid in some specific areas as a set down in the legislation for the judge to make an assessment as to whether he feels that they are it's relevant to the point that he should give some direction to the jury on the matter and for him to then offer that direction to the jury to say it's not unusual for for judges to give some direction to juries on particular issues but in this case it is specifically related to sexual a sexual crime in a way that is very specific about the type of information that may be brought before the court during the course of that trial so it's to assist the jury in understanding that information rather than trying to give any one particular side an advantage over the other. Roderick and then Christian and then we must move on to the rest of the bill. Thank you convener, perhaps I can pull together some of the threads that been talked about in the last three questions firstly on the question of whether expert evidence would be suitable I think if I recall Professor Jarmers pointed out in his evidence session that the law currently only provides for expert evidence on delayed disclosure reporting it doesn't provide for expert evidence on the absence of physical resistance during the act itself so clearly that wouldn't be a panacea without changes elsewhere in the law. As to Mr Finney's point about the faculty of advocates view I hesitate notwithstanding to remember the faculty of advocates to speak for them but Mr Meehan made the point that if mandatory directions are to be given on one matter there never to be be requests for them to be considered across the board the difficulty is in the absence of jury research one does not really know whether the jury would find that helpful. Gil Parsons referred to the jury research carried out by Professor Monroe I don't think any of that has been specific to this jurisdiction given that there's a possibility of jury research being carried out under the auspices of Lord Bonomy's review group wouldn't it be prudent to take account of that research either if this legislation is passed and perhaps not having a commencement date for these provisions until that jury research has reported is that something that government would consider? I'm not necessarily persuaded that it's necessary because of the level of understanding we have in this area at the present moment additionally the jury research will take a considerable period of time it's not a short piece of work and outcomes from that will take a considerable period of time to then evaluate and to come to decision on whether there are further changes that we want to make within our justice system and I think I'm due to appear at the committee in a few weeks again which I think will be an issue that's related again to aspects of jury research but I think we have given a level of understanding we have in this particular issue at this particular point I'm of the view that there is sufficient evidence to justify moving forward towards statutory jury directions in a very restricted limited set of circumstances but which gives sufficient flexibility to the judge when they apply and how they also put that across to the jury. I just wanted talking about jury direction around sexual offences and we talked about precedent early on about in other jurisdiction is that do you do the cabinet secretary or is official knows any precedence in other jurisdiction where that type of jury direction has been expanded to other cases than sexual offences cases? Beyond sexual offences cases and so having started with sexual offences cases that's then going to other areas off top of my head I'm not aware but I'm more than happy to take that away and we can check and we can then come back to the committee if that would be helpful. What would be interesting and another point I had Gil Partizan talking and you talked yourself about passive ideas but I referred to the policy memorandum, the keen formation and the words are stronger concern have been expressed by certain ill-funded preconceptions held by members of the public who make up juries about the nature of sexual violence, make understanding victims of sexual violence more difficult so you know it's it's a condemnation of how we are the society and how we see so we heard a lot of evidence which says that it's maybe not the way to do it but if we want to update to make sure that society and juries are following this kind of directions will maybe reassurance to all these people who are complaining if you could maybe have a review of these kind of juries directions and maybe seeing them abolished in a certain time you know in five, ten, 20 years time, society hasn't got these misconceptions any more so I think on the you know although there are there are views out there from some parties that this is not the way to do it I'm not necessarily persuaded that I've heard of a very clear example of I've actually got a better way in which you can deal with this issue and also I'm mindful of the length of time that this issue has been around and concerns about it have been around without clear concerted action being taken to address it effectively which is why I believe that that lack of innovation merits statutory provision being made in this particular area. In relation to reviewing any provisions within the bill and in particular this specific provisions are within it there is obviously the route for post legislative scrutiny of a piece of legislation and how it's operating as well you know I'm always I'm always open to I'm very conscious that this is a very busy committee which probably limits the opportunity that you have to carry out post legislative scrutiny and our option would be is to commission some research at a later date once they've been implemented to see how it's operating as well there are various means by which that could be operating I'd be interested in the committees views on that whether they feel that would be something that they feel would be useful and if it's something which you know I can that I'm I feel that from the government's perspective we could agree to I'd be more than happy to consider that but I'd be I'd be interested in hearing the committee's views on what you feel might be a useful way of establishing that at some point once the legislation's been introduced thank you very much thank you thank you cabinet secretary can we now move on to section 2 if I could invite questions maybe not quite as many questions as we have on the previous section but if I can invite questions on section 2 Margaret McGill thank you convener on the non-consensual sharing of private intimate images we heard from witnesses who gave evidence that they felt it should be widened and you know there should be all different kinds of communication should be included like text messages and letters so what are your views on that well we've gone from a slightly wider definition in applies in other parts of the UK in this area but it's slightly more narrow and I'm conscious this is a this is a clear example of the type of emerging type of issue that comes about through social media and making sure that our law is up to date as possible and and be able to deal with these issues as effectively and I'm also very conscious of the written evidence that you've received around whether we could widen the scope of the definition of this offence further to around private intimate text messages emails voice mails and letters we're going to give consideration to that there is a balance to be struck here though as well that in that if we widen it further the potential unintended consequences that the legislation could then have as well and so I'm not in my mind set against it I just we need to explore this very carefully so that we do not find ourselves in a situation where we widen the definition to such an extent that we create a lot of unintended consequences that would not have been our objective as well and I've of course been interested in the committee's views on this matter but I think there's a balance to be struck by widening it and also potentially drawing into the offence areas that it was not initially intended for. I mean I welcome the fact that you are going to look at that again but a victim supports Scotland and women's aid in particular felt and they argued that it should not matter what the media is it is the non consensual sharing or the threat to share sensitive and intimate material which is designed to humiliate and control or cause distress to the victims so and Scottish women's aid pointed out that sometimes images and abusive texts are sent at the same time now you know you could see Scottish Government that the such text may be captured by other legislation but women's aid were concerned that by not including other forms of communication in this specific offence may create an unnecessary loophole in the law so are you going to take all of that into consideration when you're looking at this again? Yeah well just to be clear we're not looking at it again as in are we going to do it or not what we're going to do is look at whether considering the evidence that you have received and also the committee's report what we will do is if there is you know I'm open to where if there is reasonable scope to widen out the definition without it as I say having a significant unintended or unintended consequences around what we're trying to achieve with this then able to call I'm open to considering that the other thing is that we need to make sure that the definition that we set in the legislation is also very clear and as clear as possible in order to make sure that we get the maximum benefit from it that we don't do it to the point that it starts to become well does it cover that issue but it doesn't cover this if we if we widen out too far again there could be that potential to to create some confusion around that matter and as you've already mentioned as well there are other pieces of legislation which can be used for some of the areas that have also been highlighted to the committee but I can give the member and the committee an assurance that we are going to consider these issues and if there is reasonable action we can take I'm more than willing to do so and of course I'll also be mindful of wearing to hear from the committee's views on this matter before we come to a final decision on any potential widening of the definition at stage two or three because you know the technology allows these things now for example a text could be sent and then a screenshot taken of that text which then becomes an image so you know how do you define that then and should it be included so we'll just just keep in mind in the bill we do set down some issues around the nature of the images and what would be involved in the images as well which would be again slightly different from a text message yeah but if we want to widen it to include text messages we should take that I mean also there's the issue around sexting which lots of young people are involved in nowadays where you know they send and receive sexually explicit images or videos now that perhaps if that was included would incriminate young people and obviously there is a concern around that but at the same time we need to get them to realise just the implications of what they're doing here because okay they can send these text images but they finish up on a pornographic site because someone has picked or been crashed into somebody else's computer or whatever so what is going to be done around that around the educating of younger people so that you know to try and stop them from messaging like that so when I mentioned earlier on I think that's one of the things we have to be careful here for example around sexting and is there intention to potentially bring in a lot of teenagers into our criminal justice system as a result of something like that or is that an area which is more appropriately addressed through education and promoting safety programmes around using technology amongst young people and we provided guidance to local authorities and others back in November 2013 which was around some of these issues now it may be that there is further work that needs to be undertaken in this area but this is an area where I think we need to be careful on whether our objective is to is to bring all of these potential teenagers within our criminal justice system or is this an area which would be better addressed through wider and better education and understanding of it and that's where I'm interested in the committee's views on that matter but that's where my judgment is in this matter that I would be concerned about unnecessarily bringing a lot of teenagers within our criminal justice system when it may be that there was a more reasonable route that could be taken in order to try and address this issue much more effectively it's not just about educating people about not doing it it's also educating people about what they should do if it does happen to them and how to prevent it from occurring in the first place so maybe an area to lend itself more to to education and to bring it within the criminal justice system and responsibility as well obviously because of course we need to instill that in our young people around social media you know facebook and sometimes these images finish up on social media the responsibility of these sites and taking down photographs that are inappropriate there is no timescale at the moment would you have any intentions of including that so that there was a specific time laid on these sites so that they would have to take down an inappropriate image that was there by non-consent well there is there are certain liabilities which internet providers have part of the part of the challenge you have here is that those internet service providers may not be based in scotland they may be completely out with their jurisdiction actually I suspect the vast majority of these types of service providers are based out with out with their jurisdiction and you're then in a situation where you wouldn't be able to take legal action as a result of that matter and I think there is certainly more that the EU could do in terms of the way in which service providers respond to these types of issues which would strike me as being a much more effective way to try and address this rather than individual cases in themselves and to look at where there are further provisions that could be applied at an EU level to address some of these timeframes around that there is already some aspects of EU law in this area around issues relating to intimate images etc and failure for it to be taken down when they're notified etc can have an implication for them but I would call it would be very difficult within this legislation to start tackling something which is completely out with their direct jurisdiction okay so would there be any plans to look at this in the future or to raise this through the EU well yeah well it would be fair to say that there are some there are areas to which which are reserved so which are out with their competence it's an area which I know the EU have already provided some legal provisions on so there are there is a course that could be taken a course of action it could be taken through that with a provider but it would be difficult for us to do anything further within this legislation as I say given it many of these issues would be many of these service providers will be out with their jurisdiction okay thank you thank you cabinet secretary because I invite members so any other areas of the bill the other sections if members have any questions on other sections of the bill now excuse me the final section relating to section six relating to sexual harm prevention orders we had some concerns about the fact that these orders could be imposed on an individual who has not committed a criminal offence of any kind do you think that there's equity in that and should there be some safeguards which make it clear that if this is about to be imposed that the person against whom the order is going to be made would have the right to make oral representations in advance of it being implemented so this is a the concern that the offence may have been committed somewhere in the UK no no no it's not it's the sexual harm prevention order so the final the final section section six and just in relation to that these sexual risk orders in particular can be imposed on someone who has not committed an offence so it's a lower level of yeah there's no offence who's been committed yes yeah it's really wondering about the equity of that people have raised concerns about the equity of doing that so I understand the concern members raised in regarding that and that they are it's a civil burden of proof which will apply in these issues and that no offence has to have actually have been conducted the principal objective of these orders is prevention and it will be obviously for a sheriff to consider the application based on information that's prevented before them as to where they believe that that that burden of proof has been sufficiently demonstrated to justify that an order should actually be issued there is of course a recourse to that in terms of the of course the judiciary have to make sure that the way in which they're applying it is compliant with the chr and how they then conduct that in the court and how that's taken forward and whether someone then chooses to appeal against any decision on that so there is a right of recourse should someone choose to do so if they wish to if they wish to pursue the matter once a sexual harm prevention order has been applied but their primary objective is preventative in nature which is the which is the intention behind them so would you consider the bills currently silent as we say on whether there's a right of representation in advance of the order being laid would you reconsider that in order to be fully compliant with the chr i'm not i'm not i'm not persuaded that it's not compliant with the chr and that's an issue which obviously a sheriff would have to consider at the time and how they are going to proceed with it based on the information that's presented before them in considering these issues and that of course there is an issue of recourse as well so you know i'm always mindful make it if there's ways in which we can improve the way in which it's operating but i'm not of the view that they're not compliant with the chr so long as i've been that process has been appropriately applied by the sheriff it's considering the issue so could you clarify is it open to the sheriff to allow oral representation the sheriff teams so the sheriff can make can go have the fender will have an oral hearing in the form of a plain mitigation in the matter so um and it will however be for the sexual harm prevention order it can be granted in civil proceedings and the which is different again obviously from the it's a little different from the sr o but um so they can have an oral hearing if they consider that to be appropriate okay that's helpful thank you thank you can you some okay um before yeah uh roddy can i say just a brief point i don't want to get too bogged down into this but if you may recall the evidence sessions we had on 17th November we took some evidence from professor charmers on um the drafting of um sections the subsection eight of the proposed new section 54a i think professor charmers was suggesting that there might be merit in removing the words or who has subsequently become in reference to habitual residents um is that without going to bog down too much of the technicality is that something the government will take on board the comments that professor charmers has made i'm i'm aware of the concerns which he's raised i think the slight issue we have here i think it's largely a theoretical point rather than it being a practical issue because i'm not aware of any significant difference between uh between sexual offences law in scotland and other parts of the UK so something that would be uh that would be an offence in England that wouldn't be an offence here so i'm i'm not aware of that so but what we will do is at stage two we'll give consideration how we can if there's a way in which we can clarify this much more effectively in the legislation um but i do think it's largely a theoretical point rather than actually being a practical issue in itself because i haven't been able to identify any any difference within uh the different jurisdictions on sexual offences legislation thank you just finally section one the statutory abrogation would apply where a person either intends to or is reckless as to causing a partner or an ex-partner physical or psychological harm but there's no requirement for proof of previous similar acts of a previous similar act and i think the concern therefore is that the agrivation could be liable than practically every case involving physical or psychological harm against a partner or an ex-partner is that the intention behind section one it is it is okay um the cabinet secretary will be aware that the scotish government is currently thinking about a specific offence of domestic abuse why was the decision not taken to include um this specific offence of domestic abuse in the bill well as you were were um we've already started consulting on the specific offence around domestic abuse the purpose behind the aggravator was to make sure that it was formally recorded by the court at that particular point um and it was recognised at the time of sentencing an offender it's in a similar approach which we've taken in other areas of the law for example around religious and racial hatred matters and we believe that by providing a specific aggravator it provides reassurance to victims that it will be formally taken into account at the time when the facts of the offence are being considered and that it will be considered by the court at that point so the purpose behind it is to ensure that it's formally recorded and recognised by the courts okay thanks so just finally in with respect to section five and on harassment orders are some concerns raised whether or not that's somebody has been assessed by court as being unfit to stand trial they could still be subject to a non harassment order they preach that it's a criminal offence but they may still be unfit to stand trial so it's a bit circular that you might not really be achieving very much by that i think the challenge we have here is that you can have someone who is not considered to be fit for trial but that there can be an ongoing issue with harassment stalking etc still taking place and the purpose behind this particular order is to provide a mechanism which can be put in place in order to ensure that it also provides clarity to the police that they can take action should the order be breached and provides greater reassurance then to the victims of these types of matters now there could be issues that circumstances may change by the time they are presented before the courts again where they could be prosecuted but it provides us with it provides the police in particular with clarity around enforcement of these matters should the should the order be in place despite the fact that the person may actually not have been fit for trial previously thanks thanks for your attendance in a rather long session this morning thank you thank you i'm going to suspend very briefly to allow the clerk to see which of the petitioners are actually here today for our item six obviously we keen to to make sure that we attend to those particular okay thank you thank you can we restart given they give it given me we have a number of petitions to be considered which the clerks has produced a paper number six to company this item and some of the petitions may not be considered again in fact if we get through all of them we may not consider any further petitions in this session however we have a number of them and as particularly petitioners on 1370 on an inquiry into the conviction of McGrachie are present i would like to take that petition first and then we'll return to the other petitions an update from justice from McGrachie was circulated to members on the 18th of december the update again emphasises their position in relation to the appointment of an independent prosecutor to consider the findings on the police investigation operation sandalwood the clerks petition a clerks paper reminds members that the scottish criminal cases review commission announced in November that it was closing its review of McGrachie's conviction because it could not get access to his defence papers and therefore can i have members' views on the petition put possible options are set out in pages nine and ten of the petition so i can take views from members yep thank you community well um operation sandwood's been alluded to and that certainly ensured that the accusations made by justice for McGrachie were back in track and i know that they have every confidence in the way police scotland have dealt with that and indeed praised it and i think given that that's live first and foremost the petition must be kept open would be my view but there are wider issues and these have been alluded to and and i don't think any criticism could be laid at the door of justice from the grass committee about the timing of the voluminous amount of papers that we got today they do also relate to the time frame of exchanges and at least with the lord advocate there's a significant issue about process here that i think should be of concern to the justice committee regarding the administration of our criminal justice system in this particular case we know there was nine criminal allegations and i know that we're going over ground we've gone over before but i think it's important we do that and it's important to say these have been made by highly respected public figures stress this is about process it and and i think it's the lord advocate's credit that he recognised that there was a conflict by the appointment of the independent council we then have the situation where quite reasonable questions have been posed in a letter initially in the 24th of august last year subsequently on the 5th of november by the committee to the lord advocate and these questions remain unanswered i have to say that the issue of process for me isn't exclusive to this case we need to try and understand what would happen in the event of a criminal case where the people charged with making important decisions themselves are the subject of some accusations and as i say it's to the lord advocate's credit that he's acknowledged that this is about process it is about post holders it's certainly not about personalities but having accepted that operation sandwood has put the issue firmly on track after an unfortunate start we do have the suggestion that the crown agent is an independent person in this process or will play a role in this process and as we've seen from the letters and hopefully members are the opportunity to read them certainly you know i think any reasonable judgment would say that that's not necessarily the case given that the crown agent defended the crown officer's position in a letter of 2012 as i see the time frames out with the control of the petitioners here i think there is a broader issue that goes beyond the petition so i would like to suggest that the committee a keep the petition open excuse me but also i think it's entirely legitimate and indeed the public would expect that we would want to understand the the significant issue of a possible gap in our process there and i would like the clerk to write to the lord advocate with the particular questions hopefully we'll get some response to them that would advise what further action if any we would need to take can i seek others body i'm quite happy to keep the petition open operation sandwood's ongoing and obviously it's a little bit disappointing in some respects that the Scottish criminal cases review commission have taken stance they have done but i fully understand why they've done so what does concern me is some of the recent correspondence which seems to focus far too much in my opinion on one individual whose role is to coordinate matters with the independent council and i'm not sure that i could agree with mr finney on what questions we should actually be addressing the lord advocate but i would like to reserve my position on that to actually see what it is it's proposed to address to the lord advocate john finney raises important issues of process and i think he's right to highlight that it's not about individuals but about the process and i would support what what john has suggested doing i mean obviously i suggested here about a letter i wonder one of the possibilities so it wasn't doesn't indicate that it's a committee's view necessarily would be to ask the lord advocate to respond to the paper from the recent paper from justice from a graphic which obviously through no fault of their own was not delivered to members until fairly recently as anyone else and i will say we committee can consider this again yeah we can keep the petition open and ask for a question yeah i would definitely be happy with your recommendation covena particularly that i would covena have particular views on the things as well so i think if you want to keep it as neutral as possible and making sure that we we take consistency of the letter we received and asking for for explanations we would be right so we will keep the petition open we'll ask the lord advocate for his response to the points made by justice from a graphic in their recent contribution to us thank you very much and thank you to the petitioners for their attendance yet again today thank you can we then return to the other petitions the petition 1280 on fatal accident inquiries we kept this petition open until the inquiries into fatal accidents and sudden deaths etc scotland bill had been passed stage three of that bill was concluded in the 10th of december and the bill as passed included section six on inquiries into deaths occurring abroad which we set out in the paper on page three that we received during an earlier evidence session the petitioner appeared to be broadly content with the relevant provisions contained within the bill as the clerk's petition also notes there was an amendment agreed to at stage two that allows for fatal accidents into deaths abroad to be carried out even when the body has not been repatriated which was one of the recommendations of the committee does the committee agree that this committee this petition could now be closed pe 1501 and pe 1567 on investigation to ascertain death suicide and fatal accidents position pe 1501 request inquiries be held where death is determined to be self inflicted or accidental following suspicious death investigations pe 1567 asked for a change in the law and procedures in the investigations of unacertain death suicide and fatal accidents we're taking these petitions together because they appear to be making similar requests in both cases the petitions have come from family members of a person who has died suddenly and were not satisfied with the way in which the death was investigated the clerk received a communication from