Chamber and committees

Thank you.

Obviously, that is at a fairly high level. I imagine that those prosecutions would be quite well publicised and would attract huge media interest, particularly when they relate to well-known online platforms.

The bill creates a specific new offence of encouraging or assisting the serious self-harm of another person. Although the offence itself is narrow, that could be interpreted quite widely. The idea of encouraging someone to self-harm strays from one territory. We commonly associate online encouragement of self-harm almost with online hate crime, in which the encouragement of self-harm is used perhaps more as an attack or an insult, rather than with something that might be perceived to be of assistance. That means that it could be quite widespread. We are all on social media and we all read those kinds of comments.

What are the implications for policing? We have heard concerns in the past that legislation is sometimes passed without a wide-ranging conversation with, for example, Police Scotland, which ultimately picks up the calls when people phone in to complain or to make allegations. What conversations have you had with cabinet secretary colleagues in other directorates about the resource implications, the scale and volume, or the public awareness raising that might go with this so that we do not suddenly and overnight create the perception of a new offence that the public will respond to?

No problem—thank you.

Can you clarify what you mean by that? Do you mean secondary legislation in the Scottish Parliament or at Westminster?

Your point was about scrutiny of secondary legislation. Do you mean secondary legislation that is passed here or that is passed at Westminster with relevance to devolved competences?

That sounds very wise. Assuming that this committee would be the lead committee on any such scrutiny, that would be entirely appropriate.

Irrespective of what the committee discusses, the issue will probably come back to the Parliament—I believe that a debate on it is scheduled for next week. Perhaps it would be helpful if the Lord Advocate were to write to the committee or the cabinet secretary on her current position, given that any previous correspondence that is in the public domain will be from before the UK Government’s amendments were tabled. I would be keen to see whether it remains the Lord Advocate’s position that she has a problem with the bill. That might make it easier for the Parliament to make a decision on the LCM. At the moment, we are hearing third-hand information through the Government rather than information directly from the Lord Advocate.

The Scottish Government has been frank and open about its position on the bill—whether or not one agrees is a different matter. For the purpose of whether the committee, or indeed the Parliament, agrees or disagrees with the Government’s position on the legislative consent motion, one thing that has been sorely lacking is communication from any other party, other than the conversations that we have had in evidence sessions with the cabinet secretary. If the committee had been given sight of any correspondence or communication between civil servants, Governments, ministers, the Lord Advocate, the Northern Ireland Office, secretaries of state and so on, that might have been helpful. I am not saying that I do not trust the cabinet secretary’s word on the matter, but what we have heard is very much the opinion of the cabinet secretary and the Scottish Government on many of the matters before us, and it would have been helpful if some of that communication had been in the public domain—where it was not breaching any privacy or individual cases. I understand the sensitivities around that. Having sight of such communication may have helped the committee, and it could help members in the chamber next week.

Thank you, convener. [Interruption.] We are getting quite a lot of feedback.

My questions are perhaps technical ones rather than wider policy ones, minister. Thanks to amendments that were passed at the committee stage in the House of Lords, clauses 165 and 166 of the bill state that the new offence can be committed where a relevant act is committed outside the UK by a person who is habitually resident in the UK or by a person who is a body incorporated or constituted under UK law. I am keen to explore what effect that has on Scots law and prosecution in Scotland.

Someone can be habitually resident in different parts of the UK, so would they be prosecuted under the bill in England and Wales or in Scotland? I will not name any particular social media company, but you can use your imagination. If somebody who is accountable as a corporate officer and therefore liable under that parameter habitually resides in Edinburgh, for example, but the company is registered in London, would they be prosecuted in Scotland? Would it be a lot clearer if the company was registered in Scotland and the person was resident here, although the act could be committed outside the UK—in the US, for example? It is a bit unclear how that would fall out in practice.

On the issue of the Lord Advocate’s functions, what correspondence exists between the Scottish Government or the cabinet secretary and the Lord Advocate? As a committee, we have not seen any letters from the Lord Advocate explaining her position on the matter. Obviously, I take your word for it that the Government believes that there are issues, but what does the Lord Advocate herself say about it? Would you be willing to publish any such correspondence?