Chamber and committees

Meeting of the Parliament [Draft]

Meeting date: Thursday, May 23, 2024

General Question Time
First Minister’s Question Time
Europe Day 2024
Portfolio Question Time
Committee of the Whole Parliament
Post Office (Horizon System) Offences (Scotland) Bill: Stage 2
Meeting of the Parliament
Point of Order
Business Motion
Motion without Notice
Decision Time

Post Office (Horizon System) Offences (Scotland) Bill: Stage 2

The Convener

We will consider the Post Office (Horizon System) Offences (Scotland) Bill at stage 2. For the duration of the proceedings, I am the convener of the committee.

In dealing with amendments, members should have the marshalled list and the groupings of amendments. The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 45 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on any group of amendments should press their request-to-speak buttons or enter RTS in the chat as soon as possible after I call the group. The Parliament is required to indicate formally that it has considered and agreed to each section of the bill, so I will put a question on each section at the appropriate point. Members should now refer to the marshalled list of amendments.

Section 1—Quashing of convictions for relevant offences

The Convener

The first group of amendments is quashing of convictions: convictions considered by the High Court. Amendment 1, in the name of the cabinet secretary, is grouped with amendment 15.

The Cabinet Secretary for Justice and Home Affairs (Angela Constance)

I have listened to the concerns raised by members about how section 3 gives rise to unequal treatment, in that those people who protested their innocence the most would be penalised. If we were to leave in that section, those who unsuccessfully contested their conviction on appeal, or unsuccessfully sought leave to appeal, would not have their conviction quashed, whereas those who, in effect, accepted their conviction and chose not to appeal, or abandoned their appeal, would have their conviction quashed.

We also know now that, in many appeal cases, members of the judiciary will not have been aware of the Horizon system issues at the time of appeal decisions, and even if an appeal was considered after the problems with Horizon were known about, any convictions considered on appeal will have been subject to a different test from convictions that are quashed by this bill. The amendments in this group will ensure that every person whose conviction meets the criteria in the bill will be treated equally and will have their conviction quashed, regardless of previous appeal decisions.

I have always maintained that the best interests of sub-postmasters in Scotland lie at the heart of the bill. That is why I sought assurances from the United Kingdom Government minister Kevin Hollinrake that the amendments, which deviate from the approach of the UK Government bill, would not jeopardise sub-postmasters’ access to the UK compensation scheme. The assurance that I received cleared the way for me to lodge the amendments and ensure that postmasters who previously sought to appeal their convictions are not treated less favourably than their peers.

For those reasons, I ask members to support the amendments.

I move amendment 1.

Maggie Chapman (North East Scotland) (Green)

I am pleased to second the amendments and to speak to them. I submitted virtually identical amendments on precisely the same point, as I indicated I would in my opening speech in the stage 1 debate. Our amendments were lodged at exactly the same time, so I was pleased to be able to withdraw mine and support those in the name of the cabinet secretary.

I am pleased that the Government has taken the decision to seek the removal of section 3 of the bill, which is contrary to both common sense and the interests of justice. I thank the cabinet secretary for the engagement that I have had with her on the issue in the past couple of days.

I understand that a similar provision in the parallel Westminster legislation, regarding the Court of Appeal, was included in compliance with the constitutional convention that the Houses of Parliament do not interfere with decisions of the senior courts. Quite where that leaves the latest Rwanda bill, which does nothing other than contradict the Supreme Court’s finding of fact, I am not quite sure. However, be that as it may, in this place we can take such issues on their merits.

The miscarriages of justice with which we are concerned today did not occur primarily because of a failure by Scottish courts to consider the evidence before them. They occurred because, unbeknown to the courts, that evidence was not only flawed but essentially fictitious. There is no reason to believe that the High Court, confronted by the same evidence in the absence of the information that we now have, would not have reached the same verdicts. There is therefore no principled reason for excluding cases considered by the High Court from the scope of the legislation.

I was grateful to the Lord Advocate for her helpful reply to my question on that point last week. It is reassuring to know that, as she stated,

“There have been no appeals in relation to cases refused by the court of appeal in Scotland.”—[Official Report, 16 May 2024; c 74.]

However, we did not hear that there were no cases that might fall within the other provisions of the section, particularly those that exclude cases in which the High Court refused leave to appeal. In my view, it is therefore better to err on the side of caution and clarity and remove the section entirely.

I thank the cabinet secretary for lodging the amendments.

The Convener

The cabinet secretary can wind up.

Angela Constance

I have nothing further to add, convener.

Amendment 1 agreed to.

Section 1, as amended, agreed to.

Section 2—Meaning of “relevant offence”

The Convener

The next group of amendments is on the meaning of “relevant offence”: scope of affected persons. Amendment 2, in the name of Maggie Chapman, is grouped with amendments 3 to 14.

Maggie Chapman

As we have heard throughout the unfolding of the narrative, injustices were inflicted not just on sub-postmasters themselves but on their families, co-workers and the communities that they served. The bill as drafted recognises that to some extent, but its inclusion of not only those who carried on a Post Office business or had a contract of employment but all who worked in a post office at the relevant time is important. However, I believe that it is necessary to go further to ensure that the legislation includes others who may have been wrongly convicted but did not themselves work in a post office.

The amendments on close relatives address situations such as that which Pauline McNeill referred to in her question to the cabinet secretary last week. That was

“a case in which a sub-postmaster was accused of defrauding £35,000, but, to save his mother from jail, her son pled guilty to taking cash that we now know did not go missing at all, and he was subsequently convicted.”—[Official Report, 15 May 2024; c 22.]

Without the amendments in the group, the son’s conviction would stand. That is not justice.

The amendments about co-accused would ensure that the provisions of the bill would apply to a situation in which two or more people were prosecuted and convicted together of an offence covered by the legislation, but not all of them were working in a post office at the time. Without the amendments, the effect of the bill would be to quash the conviction of the post office worker but leave their co-accused a convicted criminal under the law. Again, that is not fair.

Because of those injustices, it is really important that we include those amendments.

I move amendment 2.

Pauline McNeill (Glasgow) (Lab)

Like Maggie Chapman’s amendments, my amendments 5, 6, 11, 12 and 14 would expand the provision for the exoneration of individuals to include those who have a close connection with someone who is alleged to have committed an offence, as the legislation previously describes.

On the case mentioned, Mr Naga and his mother appeared on petition in Greenock sheriff court on 23 June 2009. They were charged with the theft of £35,000 from the post office. Mr Naga was not employed officially at the post office at that time; he helped out where needed. He understandably pled guilty as part of a plea deal that would see the charges against his mother dropped.

He did not work in the post office, and I do not think that his conviction is covered by the bill. He pled guilty, even though he was innocent, to save his mother from a jail sentence, and he was given a community service order. During that time he contracted tuberculosis and almost died. He had a pretty terrible time. Mr Naga is as much a victim of the Horizon scandal as anyone else. I appreciate that his is just one case, but I hope that members listening will take in the point that the principle is the same as for all other cases. As the policy memorandum states, tainted evidence was used to convict and to get admissions from many others who might be covered by the bill.

Martin Whitfield (South Scotland) (Lab)

Is this not the crux of the matter? We are dealing with tainted evidence, irrespective of whom it was used against. Where there is tainted evidence that cannot be relied on, whoever is affected should be able to seek remedy through the bill.

Pauline McNeill

That is the salient point here. The bill is meant to capture cases where the tainted evidence from Horizon was used to convict people, whether there was an admission or not.

Mr Naga was charged, along with his mother, on petition, for stealing £35,000, which clearly did not happen at all. It is interesting that their bank accounts were not checked. I raised that point during the debate on Tuesday: the veracity of the prosecutions needs to be considered. We might think that, if £35,000 went missing, there would be some checks as to where the money went.

Page 10 of the policy memorandum clearly states:

“the Bill is anticipated to have a positive impact on all those who have been impacted by the use of tainted evidence provided by the Post Office in criminal cases.”

What do members need to look at other than page 10 of the Government’s policy memorandum? We must ensure that no victims of this horrendous scandal are left to suffer because of loopholes in the legislation. I believe that the bill would be defective if it did not capture all the cases where tainted evidence was used. The appeal court is a route for all cases, and six have been heard and overturned, but the quickest, safest and fairest way is to capture in the bill all those affected in cases where tainted evidence was used to convict people.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I have a great deal of sympathy with the amendments and with the whole bill. It has been a long time coming, and I restate the commitment made by Beatrice Wishart last week on the Lib Dems’ support for it.

I have been listening to the debate very carefully, and I am keen to hear some assurances from the minister. My chief, overriding concern is the unintended consequences of the balance struck in section 2 to clear the names of postmasters and sub-postmasters so that they are then allowed to seek compensation. From my reading of it, the bill covers those who were carrying out post office duties, whether they were contracted to do so or otherwise. I would be keen to hear from the cabinet secretary whether she believes that that condition is drawn widely enough to include the people to whom Pauline McNeill rightly referred.

Angela Constance

There are many amendments in this, the largest group, and I will take my time to address them all. Although I understand the motivation of Ms McNeill and Ms Chapman, I am sorry to say that I cannot support any of the amendments in the group.

I reiterate the unprecedented nature of the bill, which will result in convictions that were given by our independent courts being quashed automatically by an act of the Parliament on the day after royal assent is given. It is incumbent on us all not to threaten the balance struck by the conditions in section 2 that are required to be met to exonerate those sub-postmasters who suffered a miscarriage of justice as a result of tainted Horizon evidence, for a conviction to be quashed and for sub-postmasters to be able to seek compensation from the UK Government scheme.

I start with amendments 6 and 14, which relate to condition C. The bill already captures all those

“carrying on a post office business”

and also those

“working in a post office ... for ... a post office business”;

that is

“whether under a contract of employment or otherwise”.

15:15

In response to the point that Mr Cole-Hamilton raised, I can confirm that that condition is, therefore, already drawn widely enough to encompass those who may have been working with, or helping out, their friend or relative in the post office, and whose actions may have been wrongfully penalised due to the faulty operation of the Horizon system.

Pauline McNeill

That was helpful, but can the cabinet secretary confirm whether it is her view that cases such as those to which Maggie Chapman and I referred, in which the person was not employed but they assisted, would be covered by that provision even in circumstances—as I would have thought would be the case—where the person pled on the basis of tainted evidence? Addressing that tainted evidence is the primary purpose of the bill. Is the cabinet secretary saying that those cases will be covered?

Angela Constance

We should bear in mind that Ms McNeill has referred to a specific case that I believe to be live. She will appreciate, therefore, that I have to keep my—

Pauline McNeill

No, it is not live.

Angela Constance

Well, Ms McNeill knows that I do not talk about individual cases, but I repeat what I said. It is my view that condition C is already drawn widely enough to encompass those who may have been working with, or helping out, their friend or relative in the post office, and whose actions may have been wrongfully penalised due to the faulty operation of the Horizon system. If that condition is met, a conviction is automatically quashed. I will pick up on that point again later.

Amendment 14 seeks to prescribe which family members may be caught by conditions. That may have the unintended consequence of limiting the way in which the condition operates for family members to only those relatives listed. That is unnecessary and it may adversely impact some who would otherwise have their convictions quashed under the bill. It is not the relationship to the sub-postmaster that is important, but the fact that the person was

“working in a post office ... for the purposes of a post office business”,

and that is

“whether under a contract of employment or otherwise”.

Amendments 4, 5, 8 and 10 to 13 would further extend the categories of people who would come within the ambit of the conditions, without their having any connection to the work or the business of the post office. That would remove an element that has been considered very necessary: that the person must have some link to the work or the business of the post office, and not simply a connection with a person who does. Those amendments would open up a greater risk of automatically quashing convictions that are not, in fact, related to the aim of the bill, which is to capture Horizon cases.

In those situations that fall outside the criteria in the bill, there is still the right and correct mechanism for the cases to be considered by the Scottish Criminal Cases Review Commission for referral to the High Court. The Scottish Criminal Cases Review Commission and the court would be able to consider the case and the link between the failures of the Horizon system and the offence.

The bill makes it clear that it does not interfere with the powers of the High Court to quash convictions that do not meet the conditions in the bill. The conditions define the category of convictions within the bill’s scope, which are intended to be unambiguous and therefore capable of being applied without any element of judgment or discretion. Adding in any further conditions, as the amendments seek to do—for example, in referring to “a close connection”—would add a layer of complexity and discretion.

We have to remember that what we are doing with this bill is unprecedented. For that reason, it is important that Parliament as a whole decides what cases should be automatically quashed by the legislation, and that that is clear in the text of the bill, rather than opening up the possibility for Scottish ministers to exercise discretion in individual cases.

The amendments also carry a greater risk of sound convictions being quashed. For instance, they may cover a close relative who stole money from bank cards that the sub-postmaster was handling in a business, or who stole goods from the post office and sold them on.

There is an additional difficulty with amendments 5, 8, 11 and 12. They refer to a “close connection”, which is to be defined by the Scottish ministers in regulations after the bill is passed. That simply will not work. The bill quashes the convictions automatically on the day after royal assent, so it has to be clear about whose convictions will be quashed.

I cannot support amendments 2, 3, 7 and 9, which would include the “co-accused” of those who are already covered in the bill. Co-accused do not meet the conditions that have been carefully drawn up to allow for the unprecedented step of automatically overturning, through an act of this Parliament, convictions that have been made in our independent courts. Expanding the conditions to include them might lead to the automatic quashing of a conviction in which a co-accused was found guilty by the court but a sub-postmaster was found not guilty.

As I have highlighted for other amendments in the group, the amendments that expand the effect of the operation of the bill to co-accused would further extend the categories of people who would come within the ambit of its conditions, without their having any connection to the work or business of a post office. That would remove an element that has been considered necessary, which is that the person must have some link to the work or business of the post office and not simply have a connection with a person who does.

Any person whose conviction is not quashed by the legislation is, of course, left with a remedy, as they are able to seek a referral to the High Court through the Scottish Criminal Cases Review Commission. Again, I consider that, not automatic exoneration, to be the appropriate route for cases of this nature, to allow for a fuller examination of the facts and circumstances.

I conclude by appealing for some caution from members. As always, I am concerned about the impact on access to compensation, because the amendments depart considerably from the UK Government bill. The changes that we have made have been communicated openly and frankly with the UK Government, which has since replied and agreed that there would be no consequence to compensation.

The Convener

I call Maggie Chapman to wind up and press or withdraw amendment 2.

Maggie Chapman

I have listened carefully to the cabinet secretary’s position on the two different sets of amendments in the group. On her position on the amendments from Pauline McNeill and me on extending the definition to include a family member, I am partly persuaded by what she has said—I take her view on that—but I hope that, between now and stage 3, we might have further conversations so that I can be absolutely sure that nobody will fall through the gaps by accident.

On the amendments that deal with co-accused, however, I am not persuaded. As I said in my speech at stage 1, we know that the situation is unprecedented and that the kind of move that we take in emergency legislation to quash convictions that our courts have made is not to be taken lightly. It is clear that we are all giving serious consideration to the legislation. However, as Pauline McNeill has pointed out and as I have said, the point of the bill is to quash the convictions of people who were convicted on tainted evidence, and I fear that there are co-accused who have been convicted who would not be covered by the bill. I will therefore press amendment 2.

The Convener

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

Members: No.

The Convener

There will be a division. As this is the first division of the stage, I will suspend the meeting for around five minutes, to allow members to access the digital voting system.

15:24 Meeting suspended.

15:30 On resuming—

The Convener

We will proceed with the division on amendment 2. This is a one-minute division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Bibby, Neil (West Scotland) (Lab)
Burgess, Ariane (Highlands and Islands) (Green)
Chapman, Maggie (North East Scotland) (Green)
Choudhury, Foysol (Lothian) (Lab)
Clark, Katy (West Scotland) (Lab)
Duncan-Glancy, Pam (Glasgow) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Mackay, Gillian (Central Scotland) (Green)
Marra, Michael (North East Scotland) (Lab)
McNeill, Pauline (Glasgow) (Lab)
Mochan, Carol (South Scotland) (Lab)
O’Kane, Paul (West Scotland) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Slater, Lorna (Lothian) (Green)
Smyth, Colin (South Scotland) (Lab)
Sweeney, Paul (Glasgow) (Lab)
Villalba, Mercedes (North East Scotland) (Lab) [Proxy vote cast by Richard Leonard]
Whitfield, Martin (South Scotland) (Lab)

Against

Adam, George (Paisley) (SNP)
Adam, Karen (Banffshire and Buchan Coast) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Brown, Siobhian (Ayr) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Natalie (Renfrewshire North and West) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dowey, Sharon (South Scotland) (Con)
Dunbar, Jackie (Aberdeen Donside) (SNP)
Eagle, Tim (Highlands and Islands) (Con)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Findlay, Russell (West Scotland) (Con)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallacher, Meghan (Central Scotland) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (North East Scotland) (Con)
Gosal, Pam (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gray, Neil (Airdrie and Shotts) (SNP)
Greene, Jamie (West Scotland) (Con)
Gulhane, Sandesh (Glasgow) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hoy, Craig (South Scotland) (Con)
Hyslop, Fiona (Linlithgow) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Kerr, Stephen (Central Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lumsden, Douglas (North East Scotland) (Con)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAllan, Màiri (Clydesdale) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McCall, Roz (Mid Scotland and Fife) (Con)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLennan, Paul (East Lothian) (SNP)
McNair, Marie (Clydebank and Milngavie) (SNP)
Minto, Jenni (Argyll and Bute) (SNP)
Nicoll, Audrey (Aberdeen South and North Kincardine) (SNP)
Regan, Ash (Edinburgh Eastern) (Alba)
Rennie, Willie (North East Fife) (LD)
Robertson, Angus (Edinburgh Central) (SNP)
Robison, Shona (Dundee City East) (SNP)
Roddick, Emma (Highlands and Islands) (SNP)
Ross, Douglas (Highlands and Islands) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Collette (East Kilbride) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kaukab (Glasgow Kelvin) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thomson, Michelle (Falkirk East) (SNP)
Todd, Maree (Caithness, Sutherland and Ross) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Tweed, Evelyn (Stirling) (SNP)
Webber, Sue (Lothian) (Con)
Wells, Annie (Glasgow) (Con)
White, Tess (North East Scotland) (Con)
Whitham, Elena (Carrick, Cumnock and Doon Valley) (SNP)
Whittle, Brian (South Scotland) (Con)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Convener

The result of the division is: For 28, Against 93, Abstentions 0.

Amendment 2 disagreed to.

Amendment 3 moved—[Maggie Chapman].

The Convener

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

Members: No.

The Convener

There will be a division.

The vote is now closed.

The Cabinet Secretary for Education and Skills (Jenny Gilruth)

On a point of order, convener. My app did not connect. I would have voted no.

The Convener

Thank you, Ms Gilruth. We will ensure that that is recorded.

Neil Bibby (West Scotland) (Lab)

On a point of order, convener. I struggled to connect. I would have voted yes.

The Convener

Thank you, Mr Bibby. We will ensure that your vote is recorded.

The Cabinet Secretary for Health and Social Care (Neil Gray)

On a point of order, convener. My app has not refreshed. I just want to check that my vote was recorded as no.

The Convener

I can confirm that your vote was recorded, Mr Gray.

For

Against

The Convener

The result of the division is: For 28, Against 93, Abstentions 0.

Amendment 3 disagreed to.

Amendments 4 and 5 not moved.

The Convener

I call Pauline McNeill to move or not move amendment 6.

Pauline McNeill

Convener, this is the one amendment that I will move.

Amendment 6 moved—[Pauline McNeill].

The Convener

The question is, that amendment 6 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Bibby, Neil (West Scotland) (Lab)
Burgess, Ariane (Highlands and Islands) (Green)
Chapman, Maggie (North East Scotland) (Green)
Choudhury, Foysol (Lothian) (Lab)
Clark, Katy (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Duncan-Glancy, Pam (Glasgow) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Mackay, Gillian (Central Scotland) (Green)
Marra, Michael (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Mochan, Carol (South Scotland) (Lab)
O’Kane, Paul (West Scotland) (Lab)
Regan, Ash (Edinburgh Eastern) (Alba)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Slater, Lorna (Lothian) (Green)
Smyth, Colin (South Scotland) (Lab)
Sweeney, Paul (Glasgow) (Lab)
Villalba, Mercedes (North East Scotland) (Lab) [Proxy vote cast by Richard Leonard]
Whitfield, Martin (South Scotland) (Lab)
Wishart, Beatrice (Shetland Islands) (LD)

Against

Adam, George (Paisley) (SNP)
Adam, Karen (Banffshire and Buchan Coast) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Brown, Siobhian (Ayr) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Natalie (Renfrewshire North and West) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dowey, Sharon (South Scotland) (Con)
Dunbar, Jackie (Aberdeen Donside) (SNP)
Eagle, Tim (Highlands and Islands) (Con)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Findlay, Russell (West Scotland) (Con)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallacher, Meghan (Central Scotland) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (North East Scotland) (Con)
Gosal, Pam (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gray, Neil (Airdrie and Shotts) (SNP)
Greene, Jamie (West Scotland) (Con)
Gulhane, Sandesh (Glasgow) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hoy, Craig (South Scotland) (Con)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kerr, Stephen (Central Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lumsden, Douglas (North East Scotland) (Con)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAllan, Màiri (Clydesdale) (SNP)
McCall, Roz (Mid Scotland and Fife) (Con)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLennan, Paul (East Lothian) (SNP)
McNair, Marie (Clydebank and Milngavie) (SNP)
Minto, Jenni (Argyll and Bute) (SNP)
Nicoll, Audrey (Aberdeen South and North Kincardine) (SNP)
Robertson, Angus (Edinburgh Central) (SNP)
Robison, Shona (Dundee City East) (SNP)
Roddick, Emma (Highlands and Islands) (SNP)
Ross, Douglas (Highlands and Islands) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Collette (East Kilbride) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kaukab (Glasgow Kelvin) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thomson, Michelle (Falkirk East) (SNP)
Todd, Maree (Caithness, Sutherland and Ross) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Tweed, Evelyn (Stirling) (SNP)
Webber, Sue (Lothian) (Con)
Wells, Annie (Glasgow) (Con)
White, Tess (North East Scotland) (Con)
Whitham, Elena (Carrick, Cumnock and Doon Valley) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Convener

The result of the vote is: For 33, Against 88, Abstentions 0.

Amendment 6 disagreed to.

Amendment 7 moved—[Maggie Chapman].

The Convener

The question is, the amendment 7 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

The vote is closed.

The Cabinet Secretary for Social Justice (Shirley-Anne Somerville)

On a point of order, convener. I could not connect. I would have voted no.

The Convener

Thank you, Ms Somerville. We will ensure that that is recorded.

Keith Brown (Clackmannanshire and Dunblane) (SNP)

On a point of order, convener. My app disconnected. I would have voted no.

The Convener

Thank you, Mr Brown. We will ensure that that is recorded.

For

Against

Adam, George (Paisley) (SNP)
Adam, Karen (Banffshire and Buchan Coast) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Brown, Siobhian (Ayr) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Natalie (Renfrewshire North and West) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dowey, Sharon (South Scotland) (Con)
Dunbar, Jackie (Aberdeen Donside) (SNP)
Eagle, Tim (Highlands and Islands) (Con)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Findlay, Russell (West Scotland) (Con)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallacher, Meghan (Central Scotland) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (North East Scotland) (Con)
Gosal, Pam (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gray, Neil (Airdrie and Shotts) (SNP)
Greene, Jamie (West Scotland) (Con)
Gulhane, Sandesh (Glasgow) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hoy, Craig (South Scotland) (Con)
Hyslop, Fiona (Linlithgow) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kerr, Stephen (Central Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lumsden, Douglas (North East Scotland) (Con)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAllan, Màiri (Clydesdale) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McCall, Roz (Mid Scotland and Fife) (Con)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLennan, Paul (East Lothian) (SNP)
McNair, Marie (Clydebank and Milngavie) (SNP)
Minto, Jenni (Argyll and Bute) (SNP)
Nicoll, Audrey (Aberdeen South and North Kincardine) (SNP)
Regan, Ash (Edinburgh Eastern) (Alba)
Rennie, Willie (North East Fife) (LD)
Robertson, Angus (Edinburgh Central) (SNP)
Robison, Shona (Dundee City East) (SNP)
Roddick, Emma (Highlands and Islands) (SNP)
Ross, Douglas (Highlands and Islands) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Collette (East Kilbride) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kaukab (Glasgow Kelvin) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thomson, Michelle (Falkirk East) (SNP)
Todd, Maree (Caithness, Sutherland and Ross) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Tweed, Evelyn (Stirling) (SNP)
Webber, Sue (Lothian) (Con)
Wells, Annie (Glasgow) (Con)
White, Tess (North East Scotland) (Con)
Whitham, Elena (Carrick, Cumnock and Doon Valley) (SNP)
Whittle, Brian (South Scotland) (Con)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Convener

The result of the vote is: For 28, Against 93, Abstentions 0.

Amendment 7 disagreed to.

Amendment 8 not moved.

Amendment 9 moved—[Maggie Chapman].

The Convener

The question is, that amendment 9 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

The vote is closed.

Shirley-Anne Somerville

On a point of order, convener. I am still having technical issues. I would have voted no.

The Convener

Thank you, Ms Somerville. We will ensure that that is recorded.

For

Against

The Convener

The result of the division is: For 28, Against 93, Abstentions 0.

Amendment 9 disagreed to.

Amendments 10 to 14 not moved.

Section 2 agreed to.

Section 3—Determining when a conviction has been considered by the High Court

Amendment 15 moved—[Angela Constance]—and agreed to.

Section 4—Identification and notification of quashed convictions

The Convener

We move to section 4. The next grouping is entitled “Identification and notification of affected persons and provision of advice”. Amendment 16, in the name of Russell Findlay, is grouped with amendments 17 to 19. I call Russell Findlay to move amendment 16 and speak to all amendments in the group.

Russell Findlay (West Scotland) (Con)

All of us here today want the same thing, which is to deliver the most effective Scottish legislation for Scottish victims of the Post Office Horizon scandal. I am grateful to have had the opportunity to work with colleagues from other parties to try to find some common ground.

Despite the time constraints of the expedited legislation, my colleague Sharon Dowey and I have attempted to improve the bill. We have three amendments that are essentially probing, due to the limited time that we have had. That said, if the Scottish Government was persuaded by any of those amendments, I would be minded to press them; if it is persuaded but feels that they could be improved, I would be happy to work with the Government when the amendments return at stage 3; if it is not persuaded, or if there are sound reasons why the amendments are not required, I will not move them and will take time to assess what to do ahead of stage 3.

The first one is amendment 16. The bill requires ministers to notify those whose convictions have been quashed. If the person is deceased, they must notify “the person’s personal representatives.” This amendment would, I think, ensure that ministers would be required to make greater efforts by specifically seeking a deceased person’s “next of kin.”

Admittedly, I have not had sufficient time to conduct full scrutiny of my interpretation of the bill or this amendment, but I know that our very smart civil servants have the knowledge and resources to look at it and find reasons why it might not be necessary or even competent. I therefore look forward to hearing the cabinet secretary’s views and those of any other member.

I turn briefly to Fergus Ewing’s amendments 17, 18 and 19. Last night, when I saw amendment 17, I emailed my colleague to say that I wished we had thought of that one. Amendment 18 appears similar to my later amendment 22. Amendments 18 and 22 would both require ministers to provide Parliament with information after the legislation passes.

I will not attempt to speak to the detail of Mr Ewing’s amendments, but I look forward to hearing from him and to the cabinet secretary’s response. Our party’s starting position is to support Mr Ewing’s three amendments.

I move amendment 16.

15:45

Fergus Ewing (Inverness and Nairn) (SNP): In speaking to amendments 17, 18 and 19, of which notice has been given to the cabinet secretary—and I note that they are probing amendments, like Mr Findlay’s—I welcome the response that I have had from the cabinet secretary. It would be helpful if she could indicate that, if I do not move my amendments, she will continue to engage with me over the next short period—I hope before we get to stage 3—because I think that they raise important points, as does Mr Findlay’s amendment.

Briefly, in relation to amendment 16, not everybody who dies has legal representatives. That will happen only if executors are appointed, as I understand the meaning of the word. Therefore, when somebody dies without having an executor, the amendment would require action to be taken to contact the next of kin. It seems, on the face of it, that there is a lacuna there, and lacunas are not welcome—they are intruders in good legislation.

Amendments 17, 18 and 19 are based on a desire to strengthen the duty that is imposed on ministers under section 4, which states that

“Ministers must take all reasonable steps to identify”

those whose convictions have been quashed. The convictions will be quashed from the date of royal assent, so lots of people will wake up on that day not knowing that their convictions have been quashed. That is the nature of things. It is up to us, and I think that we owe it to the victims, to tell them, because it was the state that perpetrated the injustice, so the state should put it right.

We might say that the requirement for “reasonable steps” is enough, but we should bear in mind that when, in 2020, in a departure from the norm, the Scottish Criminal Cases Review Commission contacted all 80 individuals whom it had identified as potentially having been subjected to unsafe convictions, only 16 responded. When I was at school, 16 out of 80 would have been a fail. We know that postal information often fails. I think that there are one or two nods of assent to that from members. I recently found out about a jury citation only several weeks after I could potentially have been committing a criminal offence by not replying to it. We all have experience of not getting mail, and that is why there is the service of legal writs by sheriff’s officers, for example. As a practical step, we owe a duty to those people and we owe them more than the cost of a first-class postage stamp, overinflated though that may be. We owe them a duty to reach out to them and to help them. Amendment 17 is designed to offer them a meeting.

Having worked for either clients or constituents continuously since 1979, in my experience, when there is a serious matter, the only way to build up trust and confidence is to meet somebody or to offer to meet them. That could be done digitally, I suppose. That is the main thrust of what I have to say. As I am not planning to move amendment 17, because I am afraid that it is technically defective, I would welcome an assurance from the cabinet secretary that we can work together on it in the interests of having the best bill, as Mr Findlay has said. The challenge will be to implement that bill and make it succeed. That covers amendments 17 and 19.

Amendment 18 is about the duty on the Scottish ministers to report. I was very pleased to read in paragraph 48 of the financial memorandum that

“Virtually all the costs ... are to be expected to arise in financial year 2024-25.”

That means that the work will be done quickly, and we owe it to the victims, after two decades of delay, to end the delay. It is good news, as far as I have gleaned from the policy plans in the financial memorandum, that that is the view and intention of the cabinet secretary, and I would expect nothing less. However, within six months of the passing of royal assent—I hope that that will be later this month, or thereabouts, so by the end of the year—I hope that the Cabinet Secretary for Justice will come to the Parliament, make a report and report to the committee. If the committee so wishes, it can invite the cabinet secretary to come before it in order to explain what has been done, what progress has been made, how many of the 200 cases, to the best estimate, have been identified, and how many have not.

Let us not forget that the purpose is not just to quash those convictions but to make sure that everybody who is entitled to compensation for their lives and livelihoods being ruined is aware of the fact that they are entitled. As I understand it, that would cover next of kin, too, in some cases.

For those reasons, I would very much welcome any positive assurance or comment that the cabinet secretary could make now, coupled perhaps with a willingness to work between now and stage 3 with me and colleagues in all parties who want to get the best bill.

Alex Cole-Hamilton

I have a lot of sympathy with the amendments in the names of Russell Findlay and Fergus Ewing. I return to my original remarks about the unintended consequences of deviating too much from the UK legislation, notwithstanding the fact that the UK Parliament is about to dissolve. Any wrinkles will be very difficult to unpack as we bed in the legislation.

On amendment 16, in the name of Russell Findlay, my reading of the bill is that the drafting is sufficiently broad to encompass the next of kin. That is my understanding, and I would be grateful for clarity from the cabinet secretary on that.

On Fergus Ewing’s amendments, my understanding is that the notification process will rightly be undertaken by the UK Government and, once the compensation arrangements are finalised, that will be communicated along with the notification that convictions have been quashed. I am anxious to avoid our reinventing the wheel at the potential cost of deviating from the UK Government legislation, which might delay the process further.

Angela Constance

Before I speak to the detail of the amendments in the group, I assure Mr Ewing, Mr Findlay and other members in the chamber that we all want the best bill possible and that I will endeavour to work closely with all members.

I should say that I am a great admirer of Mr Ewing’s tenacity. I do not always agree with him, but we will all have heard it said that he is like a dug with a bone. He has demonstrated that on many occasions over his many years of public service.

Mr Ewing’s amendments 17, 18 and 19, which, in my view, go beyond what is required in legislation, reach into the practical arrangements that are required to give effect to the bill. I confirm that, as Mr Ewing has informed members, I have been in communication with him, and we will continue to meet to discuss matters and thrash it out—to use one of his phrases.

Although I recognise and commend the intention behind the amendments in the group, I do not believe that they are necessary.

In relation to amendment 16, in the name of Russell Findlay, the bill as drafted already covers the scenario that the amendment seeks to address—indeed, the bill goes wider. I think that that addresses Mr Cole-Hamilton’s point.

The bill adopts a two-stage approach to the notification requirement. In the first instance,

“the Scottish Ministers ... must take all reasonable steps to notify the person”,

or, where that person has died, their personal representative. In the event that that is not practicable, the Scottish ministers are further obliged to identify “some other person” whom it is “appropriate to notify”. As the explanatory notes indicate, the second stage might involve contacting the next of kin. However, that would not be limited to the next of kin if another person—for example, another relative—might be more appropriate or if there were no identifiable next of kin.

As such, amendment 16 would require a search for the next of kin in every single case, even where it was not clear whether there were surviving kin. Therefore, amendment 16 would have the potential to cause serious delay to notification—in some cases, to no real benefit—and I urge Mr Findlay not to press the amendment.

Amendments 17 and 19, in the name of Fergus Ewing, deal with the point at which the Scottish ministers notify a person that their conviction has been quashed or that they have given the chief constable a direction to delete the details of an alternative to prosecution. It is, of course, right that information should be made available to individuals whose convictions have been quashed on how they can access their rightful compensation. However, I do not believe that amendments 17 and 19 are the right way to go about providing that information.

The UK Government, which has responsibility for the administration of the relevant UK compensation scheme, will rightly provide information about redress and relevant compensation schemes to each individual, alongside notification of the fact that their conviction has been overturned. My officials are already set to work with their counterparts in the Department for Business and Trade to ensure that they have the relevant information about those individuals who are notified about their quashed convictions under the bill.

In relation to amendment 18, as I have previously indicated, the terms of the bill are such that all relevant convictions will be quashed automatically when it comes into force. The Scottish Government anticipates that the vast majority of the work associated with identifying convictions will take place in short order after the bill receives royal assent.

Although sections 4(5) and 5(4) of the bill recognise that there may be individuals who come forward at a later date to make representations to the Scottish ministers that they have had a relevant conviction, I anticipate that that will amount to no more than a handful of additional cases. As such, the work that is undertaken to identify relevant convictions will, for the most part, be a one-off concerted exercise, rather than an on-going process. In addition, the details of the process itself are likely to be broadly similar, irrespective of how many cases are considered or when they are considered.

Therefore, a reporting requirement in relation to that process would seem to constitute a disproportionate burden, especially given that amendment 18 has no end point, which would mean that the requirement would exist in perpetuity or until such time as the provision was repealed. That said, I am aware that we are due to consider an amendment in the group on reporting on the operation of the act. Without wanting to pre-empt that discussion, I am open to provision being made for a reporting duty, and I am happy to consider capturing the spirit of Mr Ewing’s amendment in a suitable stage 3 amendment.

Therefore, I urge Mr Ewing not to move his amendments.

The Convener (Liam McArthur)

I call Russell Findlay to wind up and to press or withdraw amendment 16.

Russell Findlay

Mr Ewing—or the dog with a bone—makes a very persuasive point about the Scottish Criminal Cases Review Commission’s rate of fewer than 20 out of 80 potential victims responding to its initial contact. I agree that we owe the victims whom we are discussing more than the cost of a first-class stamp.

Mr Ewing’s amendment 18 on a reporting provision is extremely important, and I am very encouraged by the hint that the cabinet secretary appeared to drop that, later on, when we discuss amendment 22, there might be some form of agreement in respect of reporting.

In response to what Mr Alex Cole-Hamilton said in his comments, I say to him that I hear his views but remind him that my lodging of amendment 16 was generally a probing exercise.

All said, I have heard what the cabinet secretary said, and I accept her word that amendment 16 is not required. I certainly do not want to risk causing any further delay, so I do not intend to press it.

Amendment 16, by agreement, withdrawn.

Amendments 17 and 18 not moved.

Section 4 agreed to.

Section 5—Deletion of details of alternatives to prosecution for relevant offences

Amendment 19 not moved.

Section 5 agreed to.

Section 6—Provision of information

The Convener

Amendment 20, in the name of Russell Findlay, is in a group on its own.

16:00

Russell Findlay

Amendment 20 seems straightforward—famous last words.

If ministers seek information as part of the process of attempting to overturn a Horizon conviction, the bill makes it a legal requirement for anyone who is subject to such a request to comply. However, the bill does not contain provision for any penalty for those who do not co-operate. Therefore, the bill as drafted is a persuasive carrot, and my amendment 20 would provide an additional stick.

Such a stick might not be necessary and, even if necessary, it might never have to be used, but why bother creating a legal requirement to co-operate, as the bill does, if that can simply be ignored with no consequence whatsoever?

I am not suggesting any severe sanction. Amendment 20 leaves that to be decided later by ministers, by way of regulations. That said, if the Scottish Government were persuaded of the need for such an amendment, I would be happy to seek to withdraw amendment 20 and work with the Government on a satisfactory version in advance of stage 3.

I look forward to hearing the cabinet secretary’s response.

I move amendment 20.

Maggie Chapman

I understand the reason for amendment 20, which is to encourage compliance, but I do not feel that a punitive approach would be helpful. If the necessary information is not provided, that is more likely to be an operational problem than a deliberate omission, and other avenues already exist in our law to ensure compliance. I believe that adding penalties would only compound the problem without achieving the desired outcome, so the Greens will not support amendment 20.

Angela Constance

Section 6 of the bill recognises that the Scottish ministers will need to obtain information from other bodies in order to successfully carry out their functions under the bill. That information is likely to be held by a range of organisations, including, but not limited to, the Scottish Criminal Cases Review Commission, the Crown Office and Procurator Fiscal Service, Police Scotland, the Scottish Courts and Tribunals Service and, of course, Post Office Ltd.

Given the public nature of those bodies, there is no expectation that they would fail to comply with a request made under that provision. Those bodies are well used to providing data and information and, clearly, they can be expected to act lawfully in that respect.

That said, in the unlikely event of material being withheld from the Scottish ministers, existing legal remedies could be used to ensure that any existing material was made available. To put it bluntly, it would be possible for ministers to take those bodies to court if information was withheld.

Fergus Ewing

I accept what the justice secretary has said, but I ask her to answer this. Post Office Ltd reputedly failed to provide the Wyn Williams inquiry with information to which Sir Wyn believes the inquiry is entitled. That is a matter of record, so does the justice secretary believe that the Post Office will be any more co-operative with us than with the Williams inquiry? Therefore, is there not a need to provide absolute assurance that there is a 100 per cent foolproof method of getting all the information that is required from the Post Office? After all, that organisation is probably the only one that knows who the sub-postmasters and sub-postmistresses were between 1996 and 2018. If we cannot be sure that we will get a better response from the Post Office than Sir Wyn got for his statutory public inquiry, we will have a potentially serious problem.

Angela Constance

As I said a moment ago, there are existing legal mechanisms to allow the Scottish ministers to take action. Mr Ewing might be further reassured to know that information sharing has been a matter of priority and that I have had discussions with the UK Government minister Kevin Hollinrake in that regard. We will enter into data agreements and, if necessary, seek section 104 orders, under the Scotland Act 1998, from the UK Government to ensure that we have the necessary powers to compel the passing on of information. All of that is over and above the existing legal remedies.

Importantly, the existing mechanisms would get to the heart of the issue. They would focus on ensuring that relevant information was provided, rather than on a symbolic imposition of a financial penalty, which would, in any event, in most cases, need to be paid out of the public purse.

Under those circumstances, I invite Mr Findlay not to press amendment 20. If he does, I ask members to vote against it.

The Convener

I invite Russell Findlay to wind up and to press or withdraw amendment 20.

Russell Findlay

As the cabinet secretary reeled off the list of agencies that would be required to co-operate with a request for information—the Scottish Criminal Cases Review Commission, the Crown Office and Procurator Fiscal Service, the Scottish Courts and Tribunals Service and various others—I found myself nodding along, in that, in all likelihood, those agencies would co-operate with such a request, but my nodding stopped as soon as she mentioned the Post Office.

Fergus Ewing was quick to intervene to point out that the Post Office is an organisation that, to say the least, has got form. It is the reason why we are here. It cannot be trusted. It has withheld information, has covered up evidence and has behaved in the most disgraceful, and possibly criminal, way.

I ask Maggie Chapman to reconsider, because what is proposed is in no way punitive. The provision is deliberately vague and, were it to be enacted, it would be open to ministers to use regulations. That said, I have heard what the cabinet secretary had said and, at this stage, it would be premature to press amendment 20. However, I give notice that I would like to look at the issue again, perhaps with the cabinet secretary’s involvement, ahead of stage 3.

Amendment 20, by agreement, withdrawn.

Section 6 agreed to.

After section 6

The Convener

Amendment 21, in the name of Maggie Chapman, is in a group on its own.

Maggie Chapman

As I highlighted in my opening speech in our stage 1 debate, we need to pay attention to the causes, as well as the consequences, of this scandal of injustice. Like other members in the Parliament, I am extremely anxious to ensure that those responsible for this heartbreak are properly called to account, and I am not entirely optimistic as to whether that will be done adequately at a UK-wide level. I would like to have gone much further than amendment 21 goes. I believe that we should see criminal charges brought against those who have lied to people, misled people and acted in ways that have caused so much—too much—misery, financial distress and even death.

However, I am aware of the need to keep things within the scope of the bill at this stage, so this relatively modest amendment requires the Scottish Government to consider the ways in which corporate and management wrongdoing might be addressed in relation to the scandal, and to report accordingly to us here in the Scottish Parliament. It does not require the Scottish Government to take any legal action or to counter or act differently to any other recommendations that might come from the public inquiry. However, I believe that we should seek to do what we can to ensure that the people who are responsible for the scandal are brought to justice.

I move amendment 21.

Angela Constance

I fully recognise the desire for those who were responsible for this unprecedented miscarriage of justice to be held to account. However, I cannot support the amendment, I am sad to say.

As members will be aware, the systems for investigating and prosecuting criminal activity are, rightly, independent of ministers. A review will not alter that situation, nor would it be appropriate for ministers to instruct the police or the Crown to act in a particular way in relation to an individual case or class of cases. There is no basis on which Scottish ministers could take any other legal action here, as there is no mechanism by which ministers can pursue legal action on behalf of individuals, and there is no direct loss to ministers.

The Post Office Horizon IT inquiry, led by retired High Court judge Sir Wyn Williams, was established to provide a clear account of the implementation and failings of the Horizon system and has been supported by evidence from relevant organisations in a Scottish context. The establishment of an inquiry was, and is, supported by this Government, and that is the correct process for findings and recommendations as to further action that is required. Therefore, I respectfully ask Maggie Chapman not to press her amendment. If she does so, I ask members to vote against it.

The Convener

I invite Maggie Chapman to wind up and to press or withdraw amendment 21.

Maggie Chapman

I hear what the cabinet secretary says, but we have a responsibility in the Parliament to do whatever we can to ensure that those who are responsible are brought to justice in the different arenas that they might be in. I will therefore press amendment 21.

The Convener

The question is, that amendment 21 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division. Members should cast their votes now.

The vote is closed.

Neil Bibby

On a point of order, convener. I could not connect. I would have voted yes.

The Convener

Thank you, Mr Bibby. I will ensure that that is recorded.

Alexander Stewart (Mid Scotland and Fife) (Con)

On a point of order, convener. I was not able to connect. I would have voted no.

The Convener

Thank you, Mr Stewart. I will ensure that that is recorded.

Foysol Choudhury (Lothian) (Lab)

On a point of order, convener. I was unable to connect. I would have voted yes.

The Convener

Thank you, Mr Choudhury. I will ensure that that vote is recorded.

For

Against

Adam, George (Paisley) (SNP)
Adam, Karen (Banffshire and Buchan Coast) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Brown, Siobhian (Ayr) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Natalie (Renfrewshire North and West) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dowey, Sharon (South Scotland) (Con)
Dunbar, Jackie (Aberdeen Donside) (SNP)
Eagle, Tim (Highlands and Islands) (Con)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Findlay, Russell (West Scotland) (Con)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallacher, Meghan (Central Scotland) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (North East Scotland) (Con)
Gosal, Pam (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gray, Neil (Airdrie and Shotts) (SNP)
Greene, Jamie (West Scotland) (Con)
Gulhane, Sandesh (Glasgow) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hoy, Craig (South Scotland) (Con)
Hyslop, Fiona (Linlithgow) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Kerr, Stephen (Central Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lumsden, Douglas (North East Scotland) (Con)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAllan, Màiri (Clydesdale) (SNP)
McCall, Roz (Mid Scotland and Fife) (Con)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLennan, Paul (East Lothian) (SNP)
McNair, Marie (Clydebank and Milngavie) (SNP)
Minto, Jenni (Argyll and Bute) (SNP)
Nicoll, Audrey (Aberdeen South and North Kincardine) (SNP)
Regan, Ash (Edinburgh Eastern) (Alba)
Rennie, Willie (North East Fife) (LD)
Robertson, Angus (Edinburgh Central) (SNP)
Robison, Shona (Dundee City East) (SNP)
Roddick, Emma (Highlands and Islands) (SNP)
Ross, Douglas (Highlands and Islands) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Collette (East Kilbride) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kaukab (Glasgow Kelvin) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Thomson, Michelle (Falkirk East) (SNP)
Todd, Maree (Caithness, Sutherland and Ross) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Tweed, Evelyn (Stirling) (SNP)
Webber, Sue (Lothian) (Con)
Wells, Annie (Glasgow) (Con)
White, Tess (North East Scotland) (Con)
Whitham, Elena (Carrick, Cumnock and Doon Valley) (SNP)
Whittle, Brian (South Scotland) (Con)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Convener

The result of the division is: For 28, Against 91, Abstentions 0.

Amendment 21 disagreed to.

The Convener

Amendment 22, in the name of Russell Findlay, is in a group on its own.

Russell Findlay

As I said earlier, amendment 22 appears to be very similar to Fergus Ewing’s amendment 18, which was not moved. His amendment would have required ministers to report to Parliament on progress after the legislation has been passed. Ministers would have needed to prepare a report after six months detailing the number of overturned convictions and those who have been notified. The cabinet secretary pointed out a particular problem with that, which was that that was in perpetuity every six months.

My amendment 22 is based on the same principles, but it is more general. It would require the Scottish ministers to prepare and publish a report within one year of the bill’s passing. That report would contain the number of quashed convictions, the number of people notified and similar data of that nature. It would also include details of why cases had resulted in conviction. I truly believe that all that is vital.

We know that all Scotland’s prosecutions were undertaken by the Crown Office and, frankly, we still do not know nearly enough about how many there were.

The Convener

I am sorry, Mr Findlay, but there is a bit too much background noise at the moment. Could conversations be taken out of the chamber if they need to be had at all?

Russell Findlay

Thank you, convener.

I believe that we do not know nearly enough about what has happened in Scotland. We do not know how many convictions there have been, and we do not know a lot of other key information.

Fundamentally, amendment 22 is about increasing transparency. After so many years of lies and deceit, victims and surviving relatives deserve no less than full transparency.

I do not think that my amendment 22 is in any way better than Fergus Ewing’s amendment 18; they complement each other. I look forward to hearing the cabinet secretary’s views.

I was going to make a suggestion, but the cabinet secretary pre-empted me. I was pleased to hear her earlier comment about a general agreement on the principle of some form of post-legislative report to Parliament. I would be very happy to work with her, Fergus Ewing and anyone else to produce the best possible version at stage 3.

I move amendment 22.

16:15

Maggie Chapman

I understand the reason for amendment 22. We support subsection (1) of the new section that the amendment proposes to add, and paragraphs (a) to (e) of proposed new subsection (2). However, by requiring information about the legal process in relation to each individual conviction, as proposed under paragraph (f), we would be doing exactly what I believe the bill is trying to avoid, which is to open the door to unhelpful examination of case details, potentially risking further trauma to survivors and breaches of privacy.

I hope that, in the conversations that happen between now and stage 3—if Mr Findlay does not press amendment 22—we can agree on the bulk of the proposed provisions, which are helpful, but we are concerned about proposed new subsection (2)(f) and the issues contained within it. As it stands, we would not support amendment 22, but we do want to support something in this space.

Angela Constance

I recognise the importance of transparency in explaining how the legislation operates and its effect. A lack of transparency in the Post Office has been very much part of the problem throughout the decades. It has led us to the need for the public inquiry and to this unprecedented but entirely necessary legislation.

Although I cannot support amendment 22 as drafted, I make it clear that I am very happy to work with Mr Findlay to develop a reporting obligation to bring back at stage 3, and to work with Mr Ewing on his amendment 18, which covers similar territory. That would include a commitment to publish a report to be laid before Parliament within 12 months of royal assent.

There are some drafting issues with amendment 22 but, as I have said, rigorous efforts will be made to identify all of the convictions, to ensure that people are notified and that there is scope for people to make representations, or for representations to be made on their behalf. I am happy to report on all notifications provided. It is important to remember that all relevant convictions are quashed automatically by the bill. However, convictions cannot all be identified automatically.

It is not for Scottish ministers to report on the receipt of compensation when we have no powers or locus in relation to the UK Government’s redress schemes. Therefore, we will not hold the information required. For any given conviction, whether it falls within the scope of the bill or not, it would be nigh on impossible to report on why the conviction was reached, and it would be inappropriate for Scottish ministers to explore and reach conclusions on why convictions were obtained in individual cases, and for those details to be published.

I recognise the need for a reporting obligation, with a focus on people notified under the legislation, along with a need to highlight the steps taken to implement the legislation so as to go some way towards meeting the intent of Fergus Ewing’s amendment 18.

Russell Findlay

Maggie Chapman makes a good point about the potential for causing further trauma, which is of course something that none of us wants to happen as some unintended consequence of amendment 22. It is obviously wise to look at the proposal with fresh eyes. The cabinet secretary made a similar point, and I thank her for her commitment to reaching an agreement to find the best way forward and find some form of amendment that does much the same thing as amendment 22 on reporting back to Parliament and providing victims with some transparency about what happened in Scotland.

Amendment 22, by agreement, withdrawn.

Section 7—Consequential provision

The Convener

Amendment 23, in the name of Fergus Ewing, is grouped with amendment 24.

Fergus Ewing

I will seek to be brief. Those who were convicted are likely to have been fined. Those cases to which the bill applies took place between 1996 and 2018, between six and 28 years ago.

In 1996, £10 could buy goods and services that in 2024 would cost £19.36—almost twice as much. The pound has been devalued by about 50 per cent since Tony Blair’s era, which—to adapt a slogan—shows that things are only worth lesser.

The purpose of amendment 23 is to ensure that, where somebody has paid a fine, not only the fine but the value lost since then is repaid. I have suggested that that be done by a method using the statutory interest rate, but it could be done by inflation. I am hoping that the cabinet secretary will confirm that she will take the matter away and consider bringing it back at stage 3 to ensure that those who have already suffered injustice are not further penalised by not being repaid the full value of their fine.

Amendment 24 applies the same principle if a financial award was made where the convicted person was required to repay money to the Post Office. That could potentially be considerably more serious, although I have no data about that. The primary obligation rests with the UK Government. There would, therefore, be a risk if we in this Parliament were to accept that the obligation that I suggest should exist somewhere rests on the Scottish Government, because it should really fall on the UK Government’s shoulders. I accept that that is a complication arising from amendment 24 that does not apply to amendment 23. However, the same principle applies: namely, that our job is to ensure that the victims get proper, full redress and compensation.

Russell Findlay

Will the member give way?

Fergus Ewing

I will take an intervention if I have time.

Russell Findlay

I will be brief.

We are in general agreement with the sentiment behind what Fergus Ewing describes. However, I wonder whether he agrees that the significant compensatory sums that will be paid would, presumably, encapsulate all the losses that have been incurred.

Fergus Ewing

I certainly hope that that is the case. I have seen the comments from Mr Bates about the quantum of compensation that was offered to him, to the effect that the amount was derisory; I can well understand his views about that.

However, I hope that the cabinet secretary, in her response, can perhaps explain whether the principle behind amendment 23 might be approved at stage 3. In addition, with regard to amendment 24, perhaps she can explain how she sees the issue being resolved where a convicted person has not only been found guilty as a result of a miscarriage of justice, but has had to make a financial payment to the Post Office. Plainly, that must, in some way or another, be repaid, and repaid at today’s value.

I move amendment 23.

The Convener

We are in the home straight, and in return for that assurance, I ask that the conversations around the chamber cease, please.

I call the cabinet secretary.

Angela Constance

Amendments 23 and 24 appear to be designed to ensure that appropriate financial recompense is provided to individuals who paid a fine or made payments to the Post Office and whose convictions are overturned by the bill.

While I have a great deal of sympathy with the amendments and with what the member is seeking to do, I am unable to support them today. There are a number of complications, which I will lay out over the next few minutes. I do so on the basis that I hope that it will be helpful to our further discussions.

Amendment 23 seeks to add interest to any repaid fine. Section 122(3) of the Criminal Procedure (Scotland) Act 1995 requires the repayment of a fine to a person whose conviction is quashed. I can assure members, therefore, that any fines that were paid in relation to quashed convictions will be repaid in full.

In addition, section 7 of the bill states:

“a person whose conviction is quashed by section 1(1) is to be treated as if, on the coming into force of this Act, the conviction had been quashed by the High Court on an appeal by the convicted person.”

Therefore, people who have had their convictions quashed by this legislation will be treated in exactly the same way as those who have had their conviction quashed by a court, and they will be repaid in full to ensure that no one is out of pocket. Repaid fines are not paid with interest to anyone, and they are often paid in instalments as opposed to up front early on.

That leads me to the second issue with amendment 23, which is that of equal treatment. If amendment 23 is passed, people whose conviction is overturned by legislation will be treated differently from people whose convictions have been overturned by a court—and from anyone else who has had any historical conviction overturned by the courts. That cannot be the outcome of this bill, which seeks parity for all victims of the scandal, whether their conviction has been quashed by legislation or by a court.

I absolutely sympathise with the intent in amendment 24 that individuals whose convictions are quashed by the bill should be entitled to receive a sum that is equivalent to any payment that was made by them to the Post Office as a result of their conviction, but, unfortunately, I cannot support amendment 24. The provision of compensation is simply a matter for the Post Office and the UK Government compensation scheme. Under the UK Government’s proposed new compensation scheme, each exonerated postmaster will have the choice of accepting a fixed offer of £600,000, which will be paid rapidly, or having their claim individually assessed. Without commenting on the merits or details of the UK Government redress scheme—given that we heard yesterday about problems of delayed payment, as outlined by Alasdair Allan on behalf of his constituent—the UK schemes are the proper and pragmatic way through which compensation should be repaid.

Keith Brown

I realise where responsibility for the compensation scheme lies, but is the cabinet secretary able to say that we will not see a repeat of the current scheme for shortfall, whereby individual postmasters who made up the supposed losses have to fill in a questionnaire of 45 questions, some of which are in five parts and many of which ask for information that only the Post Office could hold? I do not know whether the cabinet secretary is able to offer the assurance that that will not be a feature of the compensation scheme.

Angela Constance

I cannot offer any reassurance on a scheme that I do not have responsibility for or operate. There are three UK compensation schemes. One of the schemes for overturned convictions has had a new strand added to it. I am happy to share with members the information that I currently have on the UK compensation schemes. I point to good examples in this Parliament of redress schemes that have adequately compensated people for their harm and for the costs that they have had to endure in seeking justice. In particular, a number of redress schemes have ensured that people do not lose money—I mean no disrespect to lawyers—in that the money that they get from the state goes to them and they do not lose a big chunk of their compensation to pay legal fees and other costs.

I have nothing further to add, convener.

The Convener

I call Fergus Ewing to wind up and to press or withdraw amendment 23.

Fergus Ewing

I will not press amendment 23.

Amendment 23, by agreement, withdrawn.

Amendment 24 not moved.

Section 7 agreed to.

Sections 8 to 11 agreed to.

Long title agreed to.

The Convener

That ends stage 2 consideration of the Post Office (Horizon System) Offences (Scotland) Bill. I close this meeting of the Committee of the Whole Parliament.

Meeting closed at 16:30.

16:30 On resuming—

Committee of the Whole Parliament

Meeting of the Parliament

Meeting of the Parliament [Draft]

Meeting date: Thursday, May 23, 2024

Contents

Post Office (Horizon System) Offences (Scotland) Bill: Stage 2