Chamber and committees

That is a good question. We ummed and ahhed about the cut-off point, but we thought that there needed to be some point at which the right to free independent legal advice ends. However, if there is scope for extending that, I would be up for a discussion on that between now and stage 3.

Finally on independent legal advice, Rape Crisis Scotland and the Faculty of Advocates have together developed a model for that, so I hope that it will not be contentious, neither here nor in the world out there.

Amendment 264 is on the provision of independent advocacy support to complainers during criminal investigations and proceedings. That was a clear recommendation by Lady Dorrian and is supported by Rape Crisis Scotland. Where such advocacy support exists, survivors find it essential and life changing, but it is not available to all survivors across Scotland.

The Scottish Centre for Crime and Justice Research made positive evaluations of the national advocacy service, which unfortunately is not national, and recommended that it be routine provision that is nationally funded. The centre’s evaluation report stated:

“Victims-survivors were overwhelmingly positive about the advocacy support that they had received, describing it as invaluable and life-changing”.

Indeed, survivors themselves said things such as

“to me it’s turned my life around, like, completely”,

“I found it just invaluable”

and

“This has been invaluable, it’s changed my life, it’s been fantastic”.

The service clearly fills a gap in the justice system. Victim survivors described perceived imbalances in the criminal justice system, reflecting its adversarial nature, and the perception that it protects the interests of the accused before those of the victim. Advocacy support was therefore understood to improve victim survivors’ experiences by providing someone who is independent of any investigative or prosecutorial process and whose sole remit is to protect and represent the interests of the victim survivor.

Finally, amendment 265 calls for a report on what provision of ILR to complainers might be possible. In some ways, that is a fallback position in case there is no movement on the other amendments in the group—either Katy Clark’s or mine. However, it would still be useful to gather that information as preparation for the drafting of regulations or the preparation of a pilot.

I hear what the cabinet secretary says, but there is a difference between what Katy Clark and I think about the issue and what she does. Could a report gathering information on extending ILR beyond the very specific scope that is currently in the bill help us to better understand what could be done beyond the very narrow and intrusive part of a trial that you indicate?

I welcome the pilot, but I have a couple of questions about it. The first is on timescales. First, when do you hope that the pilot could be under way? Secondly, before Katy Clark’s intervention, you mentioned the importance of advocacy; however, in this context, we are talking not about advocacy but about advice. It is important that we retain the distinction between advocacy and advice, because they are two distinct and important services.

You said that a service already exists. I am familiar with an advocacy service that exists at the moment, but the problem is that it is not national—not all survivors have access to it. On the point about whether it is a matter for a budget discussion rather than something to be put into legislation, part of the problem is that, because of budgetary constraints, some complainers never get support. Putting the provision on a statutory footing would make it much more likely that more survivors would get the advocacy support that they need. How does the cabinet secretary answer the recommendation of Lady Dorrian, given that what currently exists is not sufficient?

Can you give a little bit of an explanation about your rationale for limiting the amendment only to rape? Do you not think that there would be value in including other sexual offences?

Will the cabinet secretary give way?

Oonagh, you talked earlier about the failure to include that in conversation. I am thinking about how we solve this knotty problem. Maybe we do overcomplicate things. I also think that, if we want to get to over there, we probably should not be starting from here. Is there something fundamentally wrong with the structures that we have in Government, in local authorities, and in the relationships between national and local government and governance, even before we start bringing in integration joint boards?

Are there structural barriers here that, with the best will in the world—I think that you have all acknowledged that there is will here—are preventing us from tackling the problem?

Thanks. Oonagh, you wanted to come in.

That is really helpful and powerful.

Good morning to the witnesses and thank you for joining us. I echo the apology that Jan Savage gave at the start—none of us wants to be in this situation, and it is right that we acknowledge that the people who are most directly affected should not be in such a situation.

To follow on from the responses to Paul O’Kane’s questions, there was that case last year that made it clear that detention that was based on learning disability alone was not lawful. Obviously, that was without the legal mechanisms. Cathy Asante, you said that no such case has been brought into domestic law along the same lines. Are you aware of conversations between ministers and local authorities or local authorities and care providers about the legal risk that Paul O’Kane spoke about? It should not take the threat of legal action to change the situation.

It seems as though there is something lacking in the care or support that would enable people to become de-institutionalised: we know that what is happening is technically legal, but it should not be, and we know that we should be able to provide the support in communities. Is it a question of resourcing or the lack of availability of care workers, or is it due to something more fundamental than that?