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Will the cabinet secretary take an intervention?

I just want to track back to amendment 104. I think that what you are saying, cabinet secretary, is this: “Look, Liam, you don’t need amendment 104, because it’s already covered entirely by section 12(3).” That is reassuring, and I see where you are going, but have you checked the position with any of the legal agencies to ensure that they are comfortable that this is definitely not a lacuna in the legislation?

I am very grateful. My intervention will be slightly out of order, in the sense that it is really an intervention on the cabinet secretary, but you have the floor, Mr Findlay. Did you understand from the cabinet secretary’s remarks that she would look to work with Jamie Greene on his amendment 239? I understood the objection to be to the wording that there “must” be notification, whereas the provision might need to be wound back to say “may be notified, subject to”. Did you get the sense that the cabinet secretary was saying that she would work with Jamie Greene on amendment 239, or did you not have that impression?

I am grateful to the cabinet secretary and to my friend Pauline McNeill for their comments. I think that it has been a good debate; I have enjoyed the back and forth of it.

The cabinet secretary’s point on amendment 104 is well made. I am concerned to absolutely ensure that everything is covered, so in order to preserve the position while reassurance is sought, I will not press amendment 104.

On amendment 106, after listening to the cabinet secretary, I am persuaded that amendment 135 covers what I was trying to do—I think that amendment 135 was lodged after I had already lodged amendment 106, hence the crossover. My intention with amendment 106 was to give the commissioner teeth, and I am persuaded by the cabinet secretary’s remarks that amendment 135 does that. Amendment 106 is therefore not required and I will not move it when asked to do so later.

The point about the unintended consequences that could arise if I pressed amendment 110 to a vote and if it were agreed to is interesting. None of us, whatever our persuasion, wants unintended consequences, and we are all working very hard to make the bill as good as it can be. Again, I find myself persuaded by the cabinet secretary’s course of action to avoid unintended consequences of any drafting and by the sensible suggestion that we always check what could happen with the Crown Office. I shall preserve my position on the matter and work with the cabinet secretary to ensure that the bill is as good as it can be. Therefore, I will not move amendment 110 when asked to do so.

Amendment 104, by agreement, withdrawn.

Amendments 105 and 13 not moved.

Section 12 agreed to.

Section 13—Reports on investigations

Amendment 14 not moved.

Section 13 agreed to.

Section 14—Power to gather information

Amendments 106 and 15 not moved.

Section 14 agreed to.

After section 14

Amendment 135 moved—[Angela Constance]—and agreed to.

Section 15—Offence of Commissioner disclosing confidential information

Amendments 107 and 16 not moved.

Section 15 agreed to.

Section 16—Annual Report

Amendment 136 moved—[Angela Constance]—and agreed to.

Amendments 108, 109 and 17 not moved.

Section 16, as amended, agreed to.

Section 17—Requirement to respond to annual report

Amendment 137 moved—[Angela Constance]—and agreed to.

Amendment 18 not moved.

Section 17, as amended, agreed to.

Section 18—Publication of responses to annual report

Amendment 19 not moved.

Section 18 agreed to.

Section 19—Reports

Amendments 138 and 139 moved—[Angela Constance]—and agreed to.

Amendment 20 not moved.

Section 19, as amended, agreed to.

Section 20—Protection from actions of defamation

Amendment 21 not moved.

Section 20 agreed to.

Section 21—Co-operation with Commissioner

Amendments 110 and 22 not moved.

Section 21 agreed to.

Section 22—Application of public authorities legislation

Amendments 111 and 23 not moved.

Section 22 agreed to.

Schedule 2—Application of public authorities legislation to the office of Victims and Witnesses Commissioner for Scotland

Amendments 112 to 116 and 24 not moved.

Schedule 2 agreed to.

Section 23—Interpretation of Part

Amendments 117 and 118 not moved.

Amendment 140 moved—[Angela Constance]—and agreed to.

Amendments 119 to 121 and 25 not moved.

Section 23, as amended, agreed to.

After section 23

Amendment 235 moved—[Sharon Dowey].

I am very grateful.

I will be brief. Thank you, cabinet secretary—that was an interesting discussion with much to consider. I entirely see the points that you make. I very much enjoy the working relationship that we have, and I am pleased in particular that you will look to work with me on the definition of “victim”. I think that you take my point—we share a concern in that regard, and I look forward to working with you on the definition. I think that there is an issue, but let us explore it together and make the bill as good as it can be.

With that in mind, I will not press amendment 94 to a vote.

Amendment 94, by agreement, withdrawn.

I will speak to amendments 104, 105, 106 and 110.

Amendments 104 and 105 relate to the section of the bill that describes how the commissioner will carry out investigations into whether an agency has—colloquially speaking—stood up and accounted for victims and witnesses. Both amendments are to section 12, which sets out how the commissioner may gather evidence and from whom, as part of their investigation. Section 12 says that

“The Commissioner may require any person .. to give evidence”

and “produce documents” if they are conducting an investigation under that section. Section 12(4)—rightly and understandably, in my view—clarifies that representatives of the Crown Office and Procurator Fiscal Service need not provide the information required by the commissioner if, according to the Lord Advocate, doing so could

“prejudice criminal proceedings in”

a particular

“case or ... be contrary to the public interest”.

Amendments 104 and 105 introduce a similar exception for defence practitioners—or “legal representatives”, as they are tightly and precisely defined in amendment 105. Members will note that such representatives are bound by a duty of confidentiality with regard to their clients. To keep things in good order, I again remind members that I am a practising solicitor, although I do not do criminal work, and have not done any for around 20 years.

For those who are not aware—these are my words, but members can check this if they wish to—the duty of confidentiality is fundamental to a solicitor or legal practitioner. It is non-negotiable. It is an obligation on a solicitor; it is a core principle of the solicitor-client relationship; and it is essential in maintaining trust in the legal profession. Were a solicitor to breach that duty, which is enshrined in various codes of conduct, in laws and in professional ethics, there would be very serious consequences indeed. Accordingly, my amendment 104 simply looks to replicate the protections in section 12(4) for legal representatives—that is, defence counsel—and to clarify that the commissioner’s investigative powers do not override the duty of confidentiality and that the principle of equality of arms is upheld between the prosecution and the defence by giving similar protections to both.

Amendment 106 also relates to the commissioner’s investigations, but applies to section 14, on the power of the commissioner to gather information. It is my belief that if we are to have a commissioner, and if they are to be effective, they have to have some teeth. What struck me when considering the bill was that the commissioner did not seem to have those teeth. Under section 14, they can “require” an “agency to supply information”, serve a notice demanding it and revoke such a requirement. However, they cannot enforce it.

My amendment 106 tries to give the commissioner teeth by ensuring that they are provided with enforcement mechanisms by which to exercise the power to ingather information. However, I am mindful of the fact that the committee has not, I think, had an opportunity to discuss during our evidence taking what those enforcement powers might look like. Moreover, more widely, I think that the Scottish Parliament is currently discussing other bills that provide Scottish ministers with the facility make regulations on enforcement powers when information is required by public agencies for different purposes. Therefore, instead of trying to come up with a specific enforcement power, I thought that it would be more sensible—and, I dare say, more palatable to the committee—to reserve to Scottish ministers a power under the bill to bring in, by regulations at a later stage, whatever enforcement power would be appropriate. That is what my amendment 106 seeks to do.

Amendment 110, which is my final amendment in the group, concerns section 21, which sets out that, in order to assist the commissioner in doing their job, they “may request” the co-operation of specific criminal justice agencies. Section 21(2) deals with the legitimate response of an agency upon receiving such a request, which will be either yes or no. Again, however, the commissioner has no enforcement power if they receive a no, and my concern was whether the committee would prefer them to have that enforcement ability. Absent any evidence taking, I do not feel comfortable proposing the extent and scope of such an enforcement power. It seems to me that, as with amendment 106, the sensible thing would be to reserve to Scottish ministers a power under the bill to bring in whatever enforcement power is appropriate by regulations later.

I am grateful to the committee for considering my amendments, and I move amendment 104.

Will the member take an intervention?

I am listening carefully to what the cabinet secretary is saying. How does she respond to the challenge posed by Children 1st in the documents that it has supplied? It is saying, “Okay, the commissioner can be brought in, but now is not the time.” What we really ought to be concentrating on are things that make a difference now, using the limited resource that we have in place.

Forgive me for the delay—