Chamber and committees

As ever, Christine Grahame has made a formidably strong contribution to the debate. I share her aspirations and her anxiety to be assured about public safety. I associate myself entirely with the concerns that she expressed about the impact on individuals as a consequence of attacks, when those take place. I am therefore at one with Christine Grahame and, I think, all members of the committee about the public safety concerns and the importance of acting in that respect.

The minister and Mr Wilson have demonstrated entirely clearly and convincingly to the committee that the Scottish Government is undertaking regular and assiduous work on dog control to ensure that, in Scotland, we have in place the appropriate measures through the dog control notice regime and the legislation that Christine Grahame pioneered through this Parliament. Therefore, the public in Scotland should take from this evidence session a great deal of clarity and assurance about the attention to detail that the Government, its ministers and officials pay to the way that dog control issues are managed.

Unfortunately, the Scottish Government has been put in an entirely impossible situation by the actions of the United Kingdom Government, which embarked, with absolutely no consultation, on an approach that has directly created a loophole that has implications for public safety in Scotland. That is the source of the loophole, the problem and the threat to public safety. If that issue is not addressed by the committee today—this is where, unfortunately, I part company with my dear friend and colleague Christine Grahame—we are in danger of increasing the risk to public safety. The Government’s case has been made convincingly in that respect.

Unless the loophole that has been created by the actions of the United Kingdom Government is closed, there is a risk of dogs being transferred to Scotland without proper support, training, assistance or engagement with their owners in an abrupt and distressing fashion. I can only imagine that that runs the risk of increasing the risks to public safety.

Instead of thinking more carefully about the legislation, the United Kingdom Government sent letters to Scottish ministers that created a lack of clarity and, on the basis of some news reports that I now read, highlighted the loophole that it has proudly created. If, instead of writing those absurd and provocative letters, UK Government ministers had ensured that the loophole was not created in the first place in the English legislation, the committee would not be considering the issue today. The arguments that Christine Grahame put forward would then have had more strength around them—although they are very strong arguments. The source of the loophole is the cavalier behaviour of the United Kingdom Government.

Some people might think that that is about constitutional questions but, for me, that gets to the nub of the UK Government’s reckless behaviour, which this Parliament is now on the receiving end of. It is an example of shocking disrespect for the powers of this Parliament and a shocking disregard for intergovernmental working. When I again get a lecture in this Parliament from one of my opponents about the fact that there is something wrong with the Scottish Government’s engagement with the UK Government, I will cite this case, because it is an example of shocking disrespect for the process of decision making in the United Kingdom and shocking disregard for the intergovernmental frameworks that are supposed to be our protection. For anybody who thinks that all is well with the way that this Parliament relates to the other Parliaments and Governments of the United Kingdom, this is a wake-up call, because it is an example of the actions of a UK Government that creates mayhem by its actions and does not care about the consequences for the devolved settlement.

Therefore, I am afraid that, reluctantly, I will not be in a position to support Christine Grahame’s motion. The Government has been put in an entirely impossible position, and the order that is in front of the committee is an inevitable consequence of that.

Katy Clark referred to a number of issues about the conduct of trials that were raised with us by victims during our evidence taking. A point to which Katy Clark did not refer, but I certainly will, was the conduct of the defence. An interesting point in the evidence that we heard from Simon Di Rollo was his belief that, if a judge presided with no jury, the tone and atmosphere of the court would become less prone to theatrics, with a more considered focus on the evidence. Does the cabinet secretary believe that that is an important consideration in addressing the experiences of complainants? Will that enable them to have confidence that the conduct of a trial in a judge-only pilot will most definitely be trauma informed and will perhaps provide a greater opportunity to consider dispassionately the evidence that is put in front of the court?

I will continue with the same line of argument or discussion. I was particularly struck, last week, by the comments of the Lord Advocate when she said:

“I consider that the changes that are proposed will make it more difficult to get a conviction in the type of cases that we are talking about.”—[Official Report, Criminal Justice Committee, 31 January 2024; c 12.]

The bill in front of us has the objective of ensuring that we get better outcomes in relation to prosecution and conviction for sexual crimes and that the situation that the Lord Advocate expressed concern about does not materialise. I am very concerned that the abolition of the not proven verdict has been linked to the questions of jury size and simple majority, and I would like to explore that further.

The not proven verdict—which Eamon Keane and Professor Leverick from the University of Glasgow helpfully explained to us—and the not guilty verdict amount to the same thing. We have to be blunt about that point. I would like to understand why there is a need for us to undertake any compensatory changes in relation to jury size and the majority that is required if the verdict that we propose to abolish in the bill amounts to the same as a not guilty verdict.

The difficulty that I have with all of that relates to the fine judgments that the cabinet secretary talked about. Cabinet secretary, you have made it clear that there must be balance and fairness to all parties. However, when I read the Lord Advocate’s evidence, I am worried that, as a consequence of that change, there is a risk of imbalance in relation to complainants compared to where we are today. The whole purpose of the legislation is to address the fact that none of us is happy about where we are today.

There are questions about the relationship that has been constructed in the legislation. I hear the background evidence for why it is so, but the Government needs to explore whether there is sufficiently compelling evidence of the need for a compensatory action in relation to jury size and composition, given that the not proven verdict amounts to the same as a not guilty verdict. I encourage the Government to further consider whether the evidence exists to substantiate that position.

What significance does the cabinet secretary attach to the provision in section 65(5), which specifies the necessity for written reasons to be provided by a presiding judge in such circumstances? It strikes me that such a provision provides some foundation for long-term developments in the approach to prosecuting sexual crime. There will, for everybody concerned, be a greater distillation of the analysis of the case and the evidence that can be scrutinised as a consequence of written reasons being produced by a presiding judge in those circumstances.

Could you explain to the committee the association’s understanding of the role of the Scottish Parliament in our constitutional structures?

If Parliament supports the bill, it will make it the law of Scotland that there should, on a pilot basis, be judge-only trials for rape cases. That will be the law of Scotland. I am intrigued to understand on what basis your members have the right not to follow that law, when you have told the committee that it is the job of the legal profession to do its job in trials.

I am interested, philosophically, in how members of the legal profession can, in essence, say that they will not follow the rule of law, if Parliament agrees to the legislation.

You are picking and choosing what law you are going to follow, are you not, Mr Brown?

You will understand my confusion here, Mr Brown. You have just said that there is a good reason for the rules that are in place for the faculty. The process is not concluded yet, but Parliament may well legislate for juryless trials in this bill. I want to understand what message the association’s stance will send to the wider public in Scotland, when members of the legal profession are not prepared to adhere to the rule of law, although you have told the committee that there is good reason for advocates to be under the obligation that they are under.