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The next item of business is consideration of business motion S6M-20749, in the name of Graeme Dey, on behalf of the Parliamentary Bureau, which sets out a business programme.
That the Parliament agrees—
(a) the following programme of business—
Tuesday 17 February 2026
2.00 pm Time for Reflection
followed by Parliamentary Bureau Motions
followed by Topical Questions
followed by Stage 1 Debate: Freedom of Information Reform (Scotland) Bill
followed by Stage 3 Proceedings: Children (Withdrawal from Religious Education and Amendment of UNCRC Compatibility Duty) (Scotland) Bill
followed by Committee Announcements
followed by Business Motions
followed by Parliamentary Bureau Motions
7.45 pm Decision Time
followed by Members’ Business
Wednesday 18 February 2026
2.00 pm Parliamentary Bureau Motions
2.00 pm Portfolio Questions: Constitution, External Affairs and Culture, and Parliamentary Business; Justice and Home Affairs
followed by Scottish Green Party Business
followed by Business Motions
followed by Parliamentary Bureau Motions
5.10 pm Decision Time
followed by Members’ Business
Thursday 19 February 2026
11.40 am Parliamentary Bureau Motions
11.40 am General Questions
12.00 pm First Minister's Questions
followed by Members’ Business
2.30 pm Parliamentary Bureau Motions
2.30 pm Portfolio Questions: Education and Skills
followed by Stage 1 Debate: Visitor Levy (Amendment) (Scotland) Bill
followed by Scottish Government Debate: Scottish Income Tax Rate Resolution 2026-27
followed by Business Motions
followed by Parliamentary Bureau Motions
5.00 pm Decision Time
followed by Members’ Business
Tuesday 24 February 2026
2.00 pm Time for Reflection
followed by Parliamentary Bureau Motions
followed by Topical Questions
followed by Stage 3 Proceedings: Scottish Parliament (Recall and Removal of Members) Bill
followed by Committee Announcements
followed by Business Motions
followed by Parliamentary Bureau Motions
6.00 pm Decision Time
followed by Members’ Business
Wednesday 25 February 2026
2.00 pm Parliamentary Bureau Motions
2.00 pm Portfolio Questions: Deputy First Minister Responsibilities, Economy and Gaelic; Finance and Local Government
followed by Stage 3 Proceedings: Budget (Scotland) (No. 5) Bill
followed by Business Motions
followed by Parliamentary Bureau Motions
5.00 pm Decision Time
followed by Members’ Business
Thursday 26 February 2026
11.40 am Parliamentary Bureau Motions
11.40 am General Questions
12.00 pm First Minister's Questions
followed by Members’ Business
2.00 pm Parliamentary Bureau Motions
2.00 pm Portfolio Questions: Climate Action and Energy, and Transport
followed by Finance and Public Administration Committee Debate: Cost-effectiveness of Scottish Public Inquiries
followed by Criminal Justice Committee Debate: Substance Misuse in Prisons Inquiry
followed by Scottish Government Debate: Local Government Finance (Scotland) Order 2026
followed by Business Motions
followed by Parliamentary Bureau Motions
5.30 pm Decision Time
(b) that, for the purposes of Portfolio Questions in the week beginning 16 February 2026, in rule 13.7.3, after the word “except” the words “to the extent to which the Presiding Officer considers that the questions are on the same or similar subject matter or” are inserted.—[Graeme Dey]
17:08
I wish to raise a matter of some considerable importance. I have given notice and a draft copy of my speech to the Presiding Officer, the Cabinet Secretary for Justice and Home Affairs and the Minister for Parliamentary Business.
I should say that I have been a solicitor for 45 years. However, I am no longer in practice.
Last Thursday—5 February—in the case of Hirst v chief constable and the Crown Office and Procurator Fiscal Service, Lord Lake, of the Court of Session, issued a seminal judgment in which he found Scots law to be in clear breach of the European convention on human rights and fundamental freedoms. In particular, he found that Scots law unjustifiably restricts the right to a free trial.
Lord Lake even took the step of issuing a formal declaration to that effect under section 4 of the Human Rights Act 1998. Specifically, he said that section 170 of the Criminal Procedure (Scotland) Act 1995 is inconsistent with the ECHR.
Such a declaration has been described judicially as a “last resort”. Section 170 requires, inter alia, that, for a case of malicious prosecution—which was what the case was about—to succeed, the pursuer must first have suffered imprisonment. That is plainly ludicrous. Of course it is correct that the Crown must be immune when it simply makes a mistake. Not every case results in a guilty verdict. Mistakes can be made and prosecutions brought forward in good faith, but the law should surely not protect those cases in which it can be proven that the prosecution was brought out of malice. That blanket immunity, which section 170 provides, is what I believe led to Lord Lake making his finding.
The pursuer, Mark Hirst, a former STV journalist and prominent supporter of the late Alex Salmond, was prosecuted for an alleged breach of the peace for making comments that the sheriff found simply to be an expression of an opinion. The Court of Session found that Mr Hirst had a relevant statable case for malicious prosecution to go to proof but, because of the terms of section 170, the court’s hands were tied and the action could not proceed, and Lord Lake could not consider the proof even though he found that there was a statable case.
Because he was acquitted, the pursuer, Mr Hirst, cannot succeed in a subsequent case of malicious prosecution. It seems to me that section 170 is our own legal version of a catch-22.
Will the member take an intervention?
I will take an intervention in one minute when I finish this point.
However, section 170 was written not as a work of fiction by Joseph Heller but as a provision by the United Kingdom legislature in 1995. To proceed with his malicious prosecution action, Mr Hirst would have had to have said to Sheriff Paterson, “Please find me guilty and send me to jail, because otherwise I can’t pursue a case for malicious prosecution.” That is plainly absurd. Justice was served and done by his acquittal, but justice was also then denied because of his acquittal.
The right to a free trial is a cornerstone of democracy. It is what protects the citizen against the knock on the door in the middle of the night. It is what protects people from unlawful detention. It is what protects people from the jackboot of totalitarianism. Democracy is based on personal freedom, and where there is no fair trial, freedom does not exist.
I will take the intervention from Mr Kerr.
I say at this point that this item is to seek changes to future business, and it is important that that is borne in mind.
Perhaps I may assist then, Presiding Officer. I remind members that I am a practising solicitor.
Clearly, if Scots law breaches the right to a fair trial under the ECHR, that needs to be remedied without delay, so what does Fergus Ewing suggest that members do about it?
Indeed. I will cut to the chase, Presiding Officer. I appreciate—and I have communicated this to the Minister for Parliamentary Business—that there is not enough time for a bill. There would need to be massive consultation on the bill anyway, and I recognise that, but the issue must be addressed, nonetheless, as expeditiously as possible. We cannot allow a breach in the right to a fair trial—the most fundamental right of all—to subsist for any longer than is absolutely necessary.
Therefore, in conclusion, I request that the Scottish Government, perhaps in the next couple of weeks, make a ministerial statement. If, in that statement, it indicates to members that it believes that the defect must be cured and that it will be cured, we can have confidence that this is a Parliament and a Government that believes in personal freedom, democracy and the rule of law.
17:14
Presiding Officer, I did not give you prior notice of my intent to speak. In relation to the business programme, I ask for parliamentary time to be scheduled for a Government statement on the continued delay in the release of material connected with the Salmond and Sturgeon inquiry.
Parliament has repeatedly sought clarity from ministers on when that information will be published, yet requests for both a statement and a firm timetable have been refused. Meanwhile, the Scottish Information Commissioner has taken enforcement action after deadlines were missed, and the matter now sits in the courts.
This is not some small procedural issue—it is about transparency and accountability to the Parliament and to the public. Let me be clear that no one is suggesting that the identities of alleged victims and complainers should be put at risk. Court orders protecting individuals must be respected and safeguards against so-called jigsaw identification are essential. However, ministers have said that work to resolve the issue is being carried out at pace. If that is the case, it is simply stating the obvious to say that the Government must know how far through the process it is—or does it mean at a snail’s pace?
There are only a finite number of documents involved. If we are to take what the Government says at face value, work will already have been completed on many of them. It is therefore incumbent on ministers to tell Parliament when publication of the Salmond and Sturgeon files will happen.
There is absolutely no acceptable reason why a firm date cannot now be provided immediately. Continued delay risks giving the impression that process is being used as an excuse rather than its being a necessity, in particular as we approach an election. Taxpayers, whose money has been wasted on this cynical action, deserve full transparency. We are seeing continued concerns about Scottish National Party secrecy and cover-up, and the public are rightly asking how much more public money will be spent before the matter is finally concluded.
The SNP is no stranger to frivolous litigious endeavours. We have already seen enormous legal bills accumulate: £363,000 spent on defending the botched Gender Recognition Reform (Scotland) Bill case; £250,000 spent on unsuccessfully testing independence powers at the Supreme Court; £766,000 spent on resisting cases brought by brave campaigners For Women Scotland; £630,773 spent on defending the misconduct investigation into Alex Salmond; and, so far, another £73,024—and counting—spent on attempting to keep the Salmond and Sturgeon files under wraps.
The public interest is clear. Ministers must now provide Parliament with the date for publication, confirm that protections will remain in place and explain how further delay and expense will be avoided. It is for those reasons that I call, again, for parliamentary time to be provided for ministers to make that statement, giving Parliament the clarity that it deserves and the transparency that the public need and deserve.
I call the Minister for Parliamentary Business to respond on behalf of the Parliamentary Bureau.
17:17
I thank Fergus Ewing both for the advance notice of his intention to air the matter that he did and for the accompanying detail that he provided.
The Government notes the terms of the court judgment, but we also note—as I hope Mr Ewing recognises—that the period of time in which an appeal can be lodged runs until February 2026 and, accordingly, it would at this stage be premature to comment publicly on the matter. Self-evidently, if an appeal were to be lodged, it would be appropriate and proper to defer any decision on specific action pending the final decision on the case.
I acknowledge that it is entirely reasonable for Parliament to ask the Government what it intends to do to remedy an ECHR incompatibility if that is the final position of the court after any appeal proceedings have been concluded or if no appeal is lodged. Given that we are in the period during which an appeal can be considered, I note the need to afford the proper respect to the judiciary and to the litigants, and to be mindful of the later potential application of the Parliament’s sub judice rules.
However, I note that, if the terms of the judgment broadly remain, careful consideration will be needed—as with any court judgment—regarding the judgment and what action may be necessary to address the incompatibility. With just six weeks left in the current session of Parliament, as Fergus Ewing acknowledged, that would, therefore, be a decision for the next Government and Parliament to take when the process is complete.
I accept the argument that Mr Dey has produced—that we wait until February 2026—but I cannot see why, after February 2026, there should not be a ministerial statement. The minister appeared to rule that out, although perhaps I misinterpreted that.
I am making the point that, if we get into the situation that I have referred to, there will have to be careful consideration of the judgment and any action that is required to address the incompatibility. I very much acknowledge the seriousness of the matter that Mr Ewing has raised, although we disagree on the merits of a statement and when it would be delivered.
On the matter that Rachael Hamilton raised, both I and the First Minister have already indicated in the chamber the Government’s intent. I offer further reassurance that the work is being carried out at pace. Therefore, I do not see the justification for a statement in the immediate term.
Will the minister take an intervention?
The minister has concluded.
The question is, that motion S6M-20749 be agreed to.
Motion agreed to,
That the Parliament agrees—
(a) the following programme of business—
Tuesday 17 February 2026
2.00 pm Time for Reflection
followed by Parliamentary Bureau Motions
followed by Topical Questions
followed by Stage 1 Debate: Freedom of Information Reform (Scotland) Bill
followed by Stage 3 Proceedings: Children (Withdrawal from Religious Education and Amendment of UNCRC Compatibility Duty) (Scotland) Bill
followed by Committee Announcements
followed by Business Motions
followed by Parliamentary Bureau Motions
7.45 pm Decision Time
followed by Members’ Business
Wednesday 18 February 2026
2.00 pm Parliamentary Bureau Motions
2.00 pm Portfolio Questions: Constitution, External Affairs and Culture, and Parliamentary Business; Justice and Home Affairs
followed by Scottish Green Party Business
followed by Business Motions
followed by Parliamentary Bureau Motions
5.10 pm Decision Time
followed by Members’ Business
Thursday 19 February 2026
11.40 am Parliamentary Bureau Motions
11.40 am General Questions
12.00 pm First Minister's Questions
followed by Members’ Business
2.30 pm Parliamentary Bureau Motions
2.30 pm Portfolio Questions: Education and Skills
followed by Stage 1 Debate: Visitor Levy (Amendment) (Scotland) Bill
followed by Scottish Government Debate: Scottish Income Tax Rate Resolution 2026-27
followed by Business Motions
followed by Parliamentary Bureau Motions
5.00 pm Decision Time
followed by Members’ Business
Tuesday 24 February 2026
2.00 pm Time for Reflection
followed by Parliamentary Bureau Motions
followed by Topical Questions
followed by Stage 3 Proceedings: Scottish Parliament (Recall and Removal of Members) Bill
followed by Committee Announcements
followed by Business Motions
followed by Parliamentary Bureau Motions
6.00 pm Decision Time
followed by Members’ Business
Wednesday 25 February 2026
2.00 pm Parliamentary Bureau Motions
2.00 pm Portfolio Questions: Deputy First Minister Responsibilities, Economy and Gaelic; Finance and Local Government
followed by Stage 3 Proceedings: Budget (Scotland) (No. 5) Bill
followed by Business Motions
followed by Parliamentary Bureau Motions
5.00 pm Decision Time
followed by Members’ Business
Thursday 26 February 2026
11.40 am Parliamentary Bureau Motions
11.40 am General Questions
12.00 pm First Minister's Questions
followed by Members’ Business
2.00 pm Parliamentary Bureau Motions
2.00 pm Portfolio Questions: Climate Action and Energy, and Transport
followed by Finance and Public Administration Committee Debate: Cost-effectiveness of Scottish Public Inquiries
followed by Criminal Justice Committee Debate: Substance Misuse in Prisons Inquiry
followed by Scottish Government Debate: Local Government Finance (Scotland) Order 2026
followed by Business Motions
followed by Parliamentary Bureau Motions
5.30 pm Decision Time
(b) that, for the purposes of Portfolio Questions in the week beginning 16 February 2026, in rule 13.7.3, after the word “except” the words “to the extent to which the Presiding Officer considers that the questions are on the same or similar subject matter or” are inserted.
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