Chamber and committees

Would you be happy to keep the committee updated in that regard?

I welcome the opportunity to close the debate on behalf of Scottish Labour. We welcome the general principles of the bill, but we have concerns about aspects of the detail, which we hope can be addressed at stage 2.

As the cabinet secretary said, many of the provisions seek to make permanent some of the practices that were brought into effect by the emergency Covid legislation. Some of those practices have been accepted by all as good practice and are uncontroversial, such as the electronic signing and sending of documents. Other practices, such as aspects of virtual attendance, have either not really operated or operated with difficulty—the custody courts are an example of that.

The drafting of some sections has given rise to concerns about overreach. The reliability of technology is another consideration that has been a real concern over recent years, although it is one that I hope will be addressed over time.

As Pauline McNeill outlined, the evidence that the committee was given pointed to substantial additional court time being required due to failures with internet connections. We also know that defence agents, in particular, expressed concern about the difficulty in taking instructions or getting an impression of the client in virtual hearings. That is also a concern for the Crown and for the court.

As members before me have outlined, there are two parts to the bill. Part 1 seeks to allow digital paperwork, witness testimonies and evidence in order to make permanent provisions that were introduced during the Covid pandemic. I appreciate that those proposals represent an effort to streamline and renew the efficiency of the court system in a modern technological landscape.

However, the bill does not outline in detail the criteria on which a determination in favour of virtual attendance in particular categories should be made. I noted the cabinet secretary’s comment on that issue earlier in the debate. We are concerned that the provisions relating to whether there should be virtual attendance or physical attendance need to be clarified. We also believe that the provisions relating to evidential objects being produced in court by the Crown need to be strengthened. We would be looking for more safeguards on some of those aspects at stage 2.

As stakeholders have highlighted to the Criminal Justice Committee, it might often be in the best interests of the court to request witnesses and, indeed, the accused, to attend in person in order to obtain the best evidence. That is particularly the case when, for example, evidence is in dispute. It is also an issue in relation to physical evidence. In such instances, if the court is to request that evidence be given in person, the bill outlines in detail how that test would be applied.

Furthermore, I note that, during pilots for virtual court attendance, there were frequent difficulties with internet access. We welcome the intention behind the bill to make virtual hearings more of a reality, but we do not believe that we have fully heard the detail of what happened with pilots previously, and we believe that there needs to be a great deal more scrutiny of that before we have permanent provisions in law.

We very much welcome the proposed domestic homicide and suicide reviews in part 2 of the bill. Such reviews already exist in England and are being brought into effect in Wales. I was pleased that the convener of the committee spoke about why the reviews should be anonymous and about the risks of retraumatisation, particularly for the family if details of what has happened in a domestic homicide or a suicide become public. We understand that that approach is being taken in Wales, based on lessons learned from what happened in England, where much of the detail is provided to the public.

Liam McArthur spoke about the cluttered landscape of reviews in Scotland and how we must ensure that they do not overlap. The committee considered that issue, and we also believe that it needs to be addressed. I appreciate that these review proposals represent an effort to fill a gap in Scotland’s statutory framework and to reflect on areas for reform and improvement in order to prevent future abuse and deaths. We very much support that intention of the Scottish Government. However, we believe that, as well as looking at the issue of anonymisation, we need to look at the process of full disclosure for victims’ families during the development of those reviews. It is our understanding that the Scottish Government intends for families to be kept closely advised of the available facts.

We believe that the bill must reflect an understanding that there is no universal, blanket approach to the publication of sensitive information but that there needs to be a trauma-informed approach and that we need to learn the lessons of what has happened in other jurisdictions to ensure that Scotland has the best possible process.

Does the cabinet secretary agree that we need a cross-campus strategy to address violence and abuse against women and girls in schools and that we need more education to ensure a better understanding of why abuse and violence are unacceptable? What more does she believe can be done to support staff in schools? Given what she just said about criminality, does she agree that there is a role in this for the police and the criminal justice system?

Thank you, convener, for the opportunity to speak to my amendments. Lodged after discussions with Scottish Women’s Aid, they are probing amendments that aim to strengthen the requirement under proposed new section 56A of the Housing (Scotland) Act 2001, as inserted by section 45 of the bill, for social housing providers to take account of a domestic abuse policy; to enable a review of women’s refuge provision; and to enable the public debt of domestic abuse survivors—for example, rent arrears—to be written off.

The minister was kind enough to meet me last week to discuss my amendments, and I understand that his general approach is that the level of detail outlined in my amendments should be in regulation. That brings us back to the wider debate about framework bills, enabling legislation and the scrutiny of regulations and guidance, to which a number of members referred last week.

I would argue that it is important for some of these provisions to be in the bill. My amendments relate to the protection of victims of domestic abuse and the housing instability that so often arises in such situations. We need robust, codified support for people who face homelessness as a result of abuse.

Amendment 1061 requires relevant bodies to ask individuals whom they might have reason to believe might be

“homeless or threatened with homelessness”

whether their situation arose as a consequence of either past or on-going experience of abuse.

Amendment 1062 defines “abuse” within a whole and broad understanding of harm or risk of harm, for the purposes of the duties to ask whether a person is homeless or threatened with homelessness; to act if a person might be homeless; and to act if a person might be threatened with homelessness. Abuse is acknowledged as encompassing cases of abusive behaviour from a partner or ex-partner within the meaning of section 2 of the Domestic Abuse (Protection) (Scotland) Act 2021.

Amendment 1063 requires that,

“If the relevant body is informed that the person is homeless as a consequence of ... having experienced or experiencing abuse”,

it

“must provide the person with details of such support that may be available to the person”.

Amendment 1064 expands that for individuals whom relevant bodies have reason to believe might be “threatened with homelessness” due to the threatening or abusive behaviour of others.

Amendment 1088 calls on

“Scottish Ministers”

to

“carry out a review of temporary housing provided for persons who have left their homes as a result of domestic abuse”

within one year of royal assent. The review

“must consider ... whether”

the temporary housing

“is compliant with international standards in respect of”

a number of matters, including provisions under the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence. The review would consider

“the availability of specialist provision”

and the suitability of funding for such housing.

The amendment also requires Scottish ministers to

“consult ... organisations providing such housing”,

such as

“local authorities”

and

“other persons as they consider appropriate”

as part of that review. It asks Scottish ministers to

“prepare and publish a report of the review”,

which would

“set out any action the Scottish Ministers plan to take”.

Amendment 1089 relates to the issue of public debt and the scope of domestic abuse policies to enable steps to be taken to mitigate such a situation, particularly in relation to rent arrears for tenants for whom an application for housing benefit has not yet been determined but is likely to be paid, at a level that allows the tenant to satisfy outstanding rent or other financial obligations of tenancy. The action would include

“the whole or any part of the rent arrears”

to enable those to be, in effect, written off in certain circumstances.

I am just coming to an end, but I will.

I would expect it to mean in practice that all the circumstances would be taken into account. Obviously, the amendment relates to situations in which someone is a survivor of or is experiencing domestic abuse, and it would enable all the factors to be taken into account and for the council—the housing officer, in particular—to make a decision based on the full facts as presented to them.

This is an enabling piece of legislation, but it requires local authorities to consider all those matters. I am sure that all of us, as representatives, will be aware of circumstances in which we feel that such action would be appropriate, because individuals are in a situation where substantial rent arrears have been accrued in circumstances in which we would believe, as a matter of public policy, that it would be appropriate for those arrears to be effectively written off.

As I have said, it is not my intention to push any of the amendments to a vote today, but I would like to hear the Government’s response before stage 3 and, indeed, to any contributions from other members, if there is a view that there needs to be a tightening of the drafting before stage 3.

The international standards are the obligations set out under international treaties, such as the Istanbul convention. Whether or not the United Kingdom has officially signed up to those treaties, reference would be made to the kinds of standards and obligations that are presented at an international level. The review would look at the extent to which Scotland was complying with the highest standards, rather than the lower standards that might exist in some countries. The work has been done to set out criteria and guidelines for how victims of domestic abuse and violence against women should be treated in such situations. That is very much the thinking behind the amendment.

As I have said, I am happy to consider any representations on making the definition tighter, although I should point out that the amendment was drafted by the clerks in this Parliament. I am happy to reflect on the drafting; the intention is for the standards to be those in the Istanbul convention in particular, but would include any other international standards that have been worked on, debated and agreed as appropriate in terms of the kinds of standards that states should be addressing.

I look forward to the minister’s contribution on the amendments.

I move amendment 1061.

My amendments 62 and 63 relate to the Contempt of Court Act 1981 and seek to remove provisions that currently prevent jury research in Scotland. My amendments were lodged last summer after stage 1 and prior to the cabinet secretary lodging her amendments 152 and 153. I welcome the fact that the cabinet secretary has lodged those Scottish Government amendments and that the committee is considering them today.

I welcome the cabinet secretary’s indication that the Scottish Government intends to undertake further research, particularly on jury splits, which have been a live concern and consideration today. I appreciate that there are those who believe that research of that nature is already possible within the current legal framework. However, the Scottish Government’s view is that it is not possible, and the relevant provisions for England have already been repealed from the Contempt of Court Act 1981 to enable research to take place there. I welcome the fact that there will be legal certainty that, in certain circumstances, it will be possible to undertake research.

The cabinet secretary spoke about some of the mock jury research that has been carried out, and I agree with the important point that she made that certain factors can be researched only with mock jury research. However, the committee has looked at the mock jury research and the meta-analysis that has been provided to us and, as I said earlier, I am concerned that the evidence is not substantial enough to give us an understanding of what might happen to conviction rates or to the proportion of guilty and not guilty verdicts if we proceeded with the proposed legislation that is before us.

I have already referred to the concerns that were raised by the Lord Advocate and many others. We know that the conviction rate for rape and attempted rape remains the lowest of any type of crime in Scotland. As the cabinet secretary said, that is no doubt due to preconceived biases and myths that surround victims and survivors. I hope that we would all agree that we need far greater insight into the breakdown of jury outcomes and the jury split, and an understanding of jury majorities in real-world situations. The committee has already heard how research can be a vital tool in building up a sophisticated evidence base on the factors that might inform how juries reach verdicts. We all accept that the existence of the Contempt of Court Act 1981 has heavily restricted the research that can be, or is being, carried out.

I hope that the cabinet secretary will take part in the discussion on how we take forward the research. We need to look at all categories of cases, but there are specific concerns about particular types of cases. I hope that any research and work that is carried out will focus on that, so that we have a better understanding. I also hope that the cabinet secretary will be willing to engage on some of the issues in the lead-up to stage 3 to ensure that we can build up data and information to allow us to make informed decisions that deliver the Scottish Government’s policy intent, which I believe all members of the committee share.

At the appropriate stage, I will not move my amendments 62 and 63, because the Scottish Government has lodged other amendments on the issue.

Pauline McNeill spoke earlier about some of the work that could be done over the next few years if some of the amendments that we will consider later today are passed. The Parliament needs to have proper information about what juries are doing. We might be unable to get it retrospectively—I presume that we are unable to get it, although I might be wrong—but we need proper information as to what juries are doing before we make changes of this nature.

We know that there is already a great deal of concern about low conviction rates in certain types of cases, in particular rape, attempted rape and serious sexual assault cases. We need to understand more about what juries do in those types of cases, because there would be a concern that jury majorities might be narrower in those types of cases in particular. Therefore, some of the proposals today could make a real difference on conviction rates.

Given what the Lord Advocate has said to us and the amount of time that the committee has already spent looking at and being concerned about low conviction rates in rape cases—which I know is a great concern of the Scottish Government—we should be particularly alert to the issue.

You might well be coming on to the point that I will put to you, which is the evidence that the Lord Advocate gave to the committee.

The Lord Advocate wrote to us on 18 March and said:

“In relation to the provision to alter the jury majority required for a guilty verdict I would draw the committee’s attention to the submissions made by the Crown at Stage 1 and my observation during my evidence session that ‘…if we are going to increase the percentage of individuals that we require to vote for a guilty verdict, we will make it far more challenging to secure a guilty verdict in a system that requires corroboration.’”

What is your response to that?