Chamber and committees

I think that it is about governance and accountability. Jackson Carlaw and I probably come at this issue from opposite sides—Jackson in his finance role and me in a more governance-focused role—but I think that there is a mutuality there. If we get a better structure of commissioners—or whatever those roles turn into, if they are not office-holders—will it deliver better for people? That is ultimately what we should be ensuring.

From my point of view, the financial aspect is a concern and a worry, but we need change, because at present we are not necessarily giving the commissioners the scrutiny that they require across Parliament, and they are not necessarily undertaking functions in a way that meets the hopes and wishes of the people who established them right at the start. There is an opportunity to restructure and amalgamate, and I would welcome the space in Parliament to have those discussions in a comprehensive way.

I will be brief. I thank the committee for inviting us to give evidence for its inquiry into Scotland’s commissioner landscape. As you are aware, the corporate body currently supports seven office-holders and funds the devolved Scottish activities of the Electoral Commission. We will also support the new patient safety commissioner for Scotland when they are appointed and their office is established.

As you know, we have previously raised concerns with the committee and with the Scottish ministers about the growing number of commissioners and the impact of that on the corporate body’s workload, overall budget and staff. A lot of our responsibilities are reactive and responsive to decisions that are made by the Parliament. We are therefore grateful to contribute to the inquiry and to your work, and we look forward to the discussion this morning.

For all commissioners, there are written agreements between ourselves and the relevant committees that clearly outline the different roles and responsibilities of the corporate body and the subject committees. Those agreements set out a robust governance role for the corporate body and support the effective scrutiny of committees in their respective functions. The corporate body has responsibility for funding the various office-holders, as you have already heard, as well as oversight of the governance arrangements, which includes ensuring that the office-holders follow the appropriate practices for employment and standards as employers. The corporate body sets those conditions.

Office-holders are accountable to the Parliament for the functions laid out in legislation, and they do so by providing annual reports. Committees will also call in office-holders on an annual basis for scrutiny sessions. The corporate body’s role is discrete: it looks at funding and at how the governance arrangements are set up. We appoint the accountable officer for each of the commissioners; we also receive the annual reports and discuss the budget asks, given our role with regard to funding. There is a separation between the funding and governance aspects, and the scrutiny and accountability of the commissioners’ functions—the corporate body scrutinises funding and governance while committees scrutinise their functions.

We can certainly ask for that information, but there is no power to compel committees to provide it. One of the reasons for establishing the agreement between the Conveners Group and the corporate body last year was to address some of these issues and to open a line of communication that had perhaps not been as effective as it might have been in the past. It was also about supporting committees in understanding where the different responsibilities—that is, the corporate body’s responsibilities and their own—lay.

As Jackson Carlaw said initially, it is probably the case that not many MSPs come into Parliament with a desire to scrutinise the work and functions of a commissioner or a commission, and when they understand that such scrutiny is among the responsibilities of a committee, I would not say that it comes as a shock or a surprise, but people just do not seem to be aware of such things. The agreement, therefore, was an attempt to try to strengthen that awareness.

I also point out that, as Jackson Carlaw outlined, we have changed the way that we call in commissioners and commissions; we now do so at least annually to hear about issues—that is separate from the budget scrutiny and the annual report stuff that we do. There are mechanisms in that respect.

Does the corporate body routinely get told when committees call in office-holders? No. Can we ask? Yes, but there is no obligation on committees to let the corporate body know what they have done in a particular year.

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.

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.

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.

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.

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.

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.