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Agenda item 7 is consideration of the Scottish Government’s response to the committee’s stage 1 report on the Mental Health (Scotland) Bill. Members will have seen the briefing paper and the response from the Scottish Government. Are there any comments?
I am still not very comfortable with the Government’s response. Although it has restated its intention to publish guidance made under new section 17C(2) of the Criminal Justice (Scotland) Act 2003, which section 45 of the bill seeks to insert, it still contends that there is no requirement for the guidance to be published. That is fine as far as it goes, except that it goes on to say that the guidance will achieve its intended purpose only if it is made available to victims who wish to make representations under the new victim representations scheme. It seems rather strange that the Government asserts that the guidance will achieve its objective only if it is made available to people while simultaneously asserting that it does not wish to make it a legal requirement for the guidance to be published. I find myself unable to reconcile those two points.
As I understand it, I think that that is probably acceptable. It is a principle of law that we do not write down anything that we do not need to write down. As a car cannot operate if it does not have an engine, we do not need to say that a car has to have an engine; in the same way, if something cannot operate unless it is published, it does not need to be said in law that it must be published. I wonder whether our legal advisers would care to comment on that. Was that a fair interpretation of the principle?
I absolutely—and perhaps unusually—agree with Stewart Stevenson. Earlier this morning, we heard a Government minister make the case for introducing framework legislation, as I think it was wonderfully called, when there is apparently no reason for introducing it at all. The fact that there are different sets of standards operating within Government in itself poses questions.
As I have said, I agree entirely with Stewart Stevenson, and we as a committee should adhere to our position, which is that the guidance should be published. If any committee in Parliament is about openness and transparency, it has to be this one. Let us stick with our position.
I merely reflect that the Government says that it is going to publish the guidance, simply because it must.
I wonder whether one of our legal advisers could comment on the position.
The bill would have to contain a requirement for publication to bind the Government and future Administrations to that. If that were not specified in the bill, there would be no statutory requirement for publication.
Forgive me—I seem to be the only person arguing this corner—but I am still not concerned about a statutory requirement. If the only way that the guidance can operate is by its being published, I do not see why, as a matter of law, it needs to be published; it must be published—if that does not sound totally perverse.
I agree with you that the “must” is the logical imperative if the policy position is to be delivered, as the Government explains. However, in the absence of a legal requirement to publish, this Government or any future Government would be acting within the law if it chose not to publish, and there would be no parliamentary sanction short of introducing proposed legislation to require a Government to publish. That would mean that the policy of making a victim representation scheme available to complainants would fail. It is an important part of the bill.
I understand the analogy of tyres, wheels and cars, convener, but I am not convinced by it. Do forgive me.
As we have heard enough to know that there is a disagreement on this point, I can offer to write to the Government, drawing its attention to this conversation and asking it to clarify why it thinks that it is in this particular position.
Perhaps I am not understanding this, but just for clarification, is the Government drawing a distinction between, on the one hand, publishing the guidance and, on the other, making it available to victims? Are those two separate things?
10:45
Yes. Let us be clear: the Government is not suggesting that the guidance will not be available. It will operate only if it is available.
But it is suggesting that the guidance can be available without being published.
The Government is arguing that there is no need to say that it must be published, because it has no existence if it is not published. It cannot operate if it is not published, in exactly the same way that a car without a motor is not a car, but a go-kart.
Again, I apologise if this is a stupid question, convener, but if the guidance is not published, how do victims know that it is there for them to access?
That is precisely the point. As I understand it—and I am arguing its corner here—the Government is saying that as a matter of policy the guidance will have to be made available and therefore will have to be published. As a result, there is no need to say that it must be published, because, actually, it must be published.
On the back of that, then, why is there a problem for the Government in not wanting to publish it?
I would argue that that comes back to the legal principle that we do not write something that is redundant, in exactly the same way as we do not write something twice. We do not want something twice in statute; after all, we complain if a provision can be found in two different places. As a matter of drafting practice—as I understand it; I am speaking now as a non-lawyer, never mind as a drafter—we would not write it down if it was a logical imperative. We would simply not write it down, because it is a logical imperative.
Convener, you have offered to write the Government in light of this discussion. I think that your offer is a helpful one.
If the committee will allow me to do that, I will do so. The point has been very well made and will be extensively reviewed in the Official Report.
Let me come back to wherever on earth I had got to. The question was, “Do members have any comments?” and the answer is, “Yes, quite a few.” On the question whether we want to note the response, I think that the answer is yes, and we are agreed that I will write to the Government to seek clarification on that point. Are we content with everything else?
Members indicated agreement.