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I want to clarify that matter. The cabinet secretary put a number of arguments. I did not find the argument about extra bureaucracy particularly persuasive, because what is being argued for is the creation of a whole new tier, so we would be creating extra bureaucracy anyway.

However, the cabinet secretary spoke persuasively towards the end of her remarks about a number of expert groups that have been surveyed. They said that creating a new court is the right thing to do, because we cannot leave things the way that they are, as we will spend 40 years not getting it right. Will the member address that point by the cabinet secretary? I found it quite powerful.

I just want to be absolutely clear on what we are being asked to do. You are suggesting that we should set up a sexual offences division rather than the proposed sexual offences court, because that would better achieve the outcomes that you are seeking. Am I understanding you correctly?

I shall.

Pauline McNeill is absolutely right. As I said earlier, I agree with the committee and the Scottish Government that much more needs to be done on the issue of retrials before we change the current position. However, that said, today we will make, one way or another, fundamental and foundational changes to Scotland’s criminal justice system, and we will do so in a data and evidence void. The only conclusion, in my view, that is consistent with the facts that I have set out is that the safest way to ensure that justice is done is to mirror, as closely as possible, established systems elsewhere in a manner that is recommended by experts at the Law Society.

For that reason, I shall support Sharon Dowey’s amendment 92 when I am asked to vote on the amendments in this group.

On the contrary. First of all, I am not proposing anything. I am simply outlining why I will be voting in support of Sharon Dowey’s amendment 92. I have no amendments in this group. I have come to the issue cold, and I have considered all the positions.

However, I do not concede that there is no evidence here. I say that because it seems compelling, given everything that I have said, that we need to align most closely with similar systems where they exist. That would address Pauline McNeill’s point about the need to take the safest way in order to preserve justice.

In England and Wales, as we have heard, a two-verdict system operates, with 12-person juries. In that system, unanimity, or a supermajority, is required for a conviction. Similar systems operate in the USA, Canada, Australia, New Zealand and Ireland.

Colleagues, today we are being asked to make—

I thank all my colleagues and the cabinet secretary for their guidance this morning. I am very worried about the decision that we have been asked to make, which is to choose between competing jury sizes and majorities, because I have no idea which one will ensure that justice is done—that the guilty are convicted and that the innocent go free.

Members might recall that the 2015 final report of the post-corroboration safeguards review indicated that our unique system—let us remember that it is unique; nowhere else in the world runs our system—has unique features that

“form important parts of a balanced system.”

Those features—the corroboration requirement, the 15-person jury, the three verdicts and the simple majority—have been in place for hundreds of years; all four were in place from the mid-18th century. The bill will make fundamental changes to that system: it will remove the third verdict and move to a two-verdict system, and the requirement for corroboration has already changed. What impact will those changes have on a hitherto balanced system? I do not know, but neither does the Lord Advocate.

Katy Clark rightly drew our attention to the Lord Advocate’s letter to us last week. The cabinet secretary suggested that corroboration is still there, but we know from His Majesty’s Advocate v PG and JM that there has been at least a degree of dilution. In her letter, speaking specifically to corroboration, the Lord Advocate concedes that

“the full implications of these decisions are still being considered”.

Indeed, in her evidence to us on 26 February, the cabinet secretary conceded that the changes that we are making might impact “the balance of fairness” in the criminal justice system.

Colleagues, no one can tell us what the correct evidence-based system should be in order to preserve the safeguards. For example, Rape Crisis Scotland has said that we should not change the simple majority, but it concedes that there is insufficient evidence to back that position. I think that the cabinet secretary spoke persuasively earlier as to why a simple majority should not be preferred. We heard from the senators of the College of Justice, who suggested a two-thirds majority but, as has been articulated throughout our sessions, they were not sure and had a number of caveats.

I am grateful to the cabinet secretary for her remarks. For the benefit of the committee, I note that I have seven amendments in the group, which are numbered 122 to 128, and they all relate to section 32 on page 16 of the bill. As drafted, section 32 will amend the Vulnerable Witnesses (Scotland) Act 2004. As section 22D of the 2004 act sets up a presumption that the personal conduct of certain cases should be prohibited, section 32(4) in the bill, as drafted, sets out that

“a register of solicitors who may be appointed by a court”

in such circumstances should be maintained.

For full transparency, I remind my colleagues that I am a practising solicitor.

Subsection (2) of proposed section 22E says:

“The Scottish Ministers, by regulations... must... specify the requirements that a person must satisfy”

in order to be on and stay on the register. Regulations must then set out the processes for entry to, removal from and appealing a decision about the register. It is important to note that no members have raised any concerns about those provisions.

However, by the omission of reference to remuneration in the regulation obligation, the Scottish ministers will have the discretion to regulate on the remuneration of solicitors appointed in those cases, but they will not need to do so. Accordingly, my amendment 122 seeks to fill that lacuna in the legislation by requiring the Scottish ministers to address that aspect in the regulations.

Amendment 123, which I shall come back to, simply takes on the principle and would ensure that ministers would be obliged to confer on someone the duty to maintain the register.

Amendments 124 and 125 are consequential to those amendments.

Amendments 127 and 128 relate to the same set of amendments being made to the Vulnerable Witnesses (Scotland) Act 2004. Proposed new section 22E(3) requires that, before the regulations that we have just looked at are made under section 22E(2), the Scottish ministers “must consult” the Faculty of Advocates and the Law Society of Scotland. To the best of my knowledge, no member or stakeholder has raised any issue with that perfectly supportable principle.

It occurred to me that it is all well and good to have consultation but that it is important to know what the consultation finds and concludes. My amendment 127 would simply require that a report on that consultation be published, and amendment 128 sets out what should be in the report. That would ensure that the views of the Law Society and the Faculty of Advocates could be fully considered before regulations were made that could affect vulnerable people’s access to the legal professions. Amendment 126 would simply make a technical change to pave the way for amendments 127 and 128 to be inserted properly.

The cabinet secretary made some important remarks about amendments 123 and 125. On reflection, I can see that my amendment 123 would override the new section 22E(2)(d)(i), which, as drafted, leaves the decision on regulation with the Scottish Government, and the Scottish Government “may” then pass on the responsibility. My amendment 123 would mean that the Scottish Government “must” pass it on, whether or not that is the best idea. That requirement would not be particularly sensible, in my view, and it was certainly not my intention. I also listened to the cabinet secretary’s reflections on the agencies that would be involved and their opinion on the amendments.

With that in mind, I do not intend to move amendments 123 and 125, but I intend to move the rest of my amendments in the group.

I thank Jamie Greene for his comments so far, and I am particularly enjoying listening to him explain both sides of the case. That is helpful to the committee in deciding how to vote.

Rona Mackay’s challenge is a reasonable one. However, I have been looking at your amendment 251, Mr Greene, and I see that subsection (2)(b) simply says that

“the Board must take into account any remorse shown”.

In other words, in coming to a decision, the board would have to weigh up “any remorse shown”. By extension, does that not mean that it would also have to take into account any of the challenges that Rona Mackay has put to you and that, as a result, it is not fatal to the amendment that someone might have such difficulties?

This is just for my own clarity. At least part of your case is that amendment 251 is not necessary; the Parole Board is already doing what it addresses, so there is no need to reiterate it, and if Mr Greene chooses not to move the amendment—or, if he does, but the committee votes it down—the remorse piece will still be there, because it is there already. Is that a fair reflection of what you are saying?

I am very grateful.