Chamber and committees

Good morning, convener, committee, and minister. Thank you for the opportunity to give a brief recap of my amendments 1022 and 1069 in this group.

Amendment 1022, which was worked up with Scottish Women’s Aid, expands the definition of domestic violence to cover coercive control and other aspects such as threatening, degrading and violent behaviour. We feel that that is important because certain groups of people, particularly young people and, often, women with children, might feel that they cannot leave an abusive situation as they would be intentionally making themselves homeless. We need to ensure that they have the support and protections that they need.

Specific examples of abuse and violence perpetrated by someone who is not a partner or ex-partner also need to be included in the legislation—indeed, that is the second part of amendment 1022. The more we can identify domestic abuse in our homelessness systems, the better we can help victims and survivors and support them to move on and build better lives. That is helped by having the wider definition.

Amendment 1069 seeks to understand how this section of the bill will work. We know that it is important to monitor how these measures will support women with children at risk of homelessness, and the amendment, therefore, sets out a review mechanism to ensure that we capture information so that we can see what is and is not working and improve things for the future.

I am in two minds about this, but given what the minister has said and the future that Bob Doris’s amendment may or may not bring, I will withdraw—or rather, not press—my amendment at this stage.

I refer members to my entry in the register of members’ interests, which shows that, before I was elected, I worked for a rape crisis centre.

My amendments in the group all deal with different forms of support that I and others believe that survivors need. If it is okay with the committee, I will take a bit of time to speak about each of them. First, amendment 266 on independent legal representation makes provision through regulations for ILR for complainers throughout criminal proceedings. In the paper “Without Fear or Favour: A Voice for Rape Survivors in the Criminal Justice System”, which she published 14 years ago, Professor Fiona Raitt from the University of Dundee said:

“With the exception of Scotland and England and Wales, every country in Europe gives complainers in rape cases some form of entitlement”

to ILR. She went on to say:

“The accused’s right to fair trial is paramount in our legal process. The prosecutor is bound by that principle. Because the Crown has to take account of the accused’s right to a fair trial, then when his interests are place[d] in competition with the woman’s interests, hers will always be trumped. An independent representative is not constrained in this way. Her sole consideration is the interests of her client.”

This is about justice and the right to participation in a genuinely just justice process, as well as the right to privacy.

I believe that the provisions in the bill are welcome, but they are not sufficient. COPFS is doing much more, which is also welcome, but it represents the wider public interest, which is not always that of the complainant. It is clear that things that happen before a trial begins can dramatically affect how that trial proceeds. For instance, relevant decisions are made at pre-trial hearings, so the complainer needs representation then, not just at the trial itself.

Overall, the patriarchal and misogynistic biases that are still embedded in our society, which are only too obvious in our justice system, especially when dealing with crimes of power such as sexual offences, are structural injustices, so they need structural solutions.

The committee heard that there was strong support for ILR, as indicated in the stage 1 report. As Lise Gotell from the University of Alberta said when discussing the Canadian experience, ILR can protect an array of rights and interests, guard against distortions that are caused by discriminatory biases and

“help to prevent ‘second rape’ where complainants’ privacy interests and dignity are sacrificed at the altar of a narrow conception of fair trial rights.”

I ask members to support my amendment 266, which would enable ILR to be provided.

My amendment 267 calls for the provision of legal advice from the point at which a complainer first gets in touch about an offence with the police, victim support services or any other people, as indicated in the amendment, and for a year after the conclusion of any criminal proceedings. Rape Crisis Scotland has specifically called for that. It said that independent legal advice

“should be extended to include legal advice for complainers of sexual offences in the lead up to the trial, to assist them to better understand the process and feel better prepared for giving evidence. This is a proposal that is supported by both Rape Crisis Scotland and the Faculty of Advocates.”

That proposal would help complainers to feel supported throughout and to feel a part of the criminal justice process. As the committee heard at stage 1, survivors would very much value that support.

To add to what I said on amendment 266, it is clear that independent legal advice works. It has been available in Northern Ireland for some time, and has been extended in recognition of its success. It is surely only right that complainers are supported to understand the process and be properly prepared for any trial and that it is important to continue that advice after a case is dismissed or abandoned.

Absolutely—yes. The report could gather useful information in advance of the pilot scheme. That would inform the pilot scheme, which would then provide additional information for a wider roll-out. Alternatively, if we went straight for ILR, as my amendment 266 asks for, it would provide that foundational information. The report would have value regardless of what else happens with other amendments in the group, but it could be a useful starting point for Katy Clark’s amendments or my amendments.

Turning briefly to the other amendments in the group, I broadly support the intentions behind them, and I am interested in hearing the cabinet secretary’s remarks as to how we can progress with the support.

Finally, I stress that it is important that we understand that there is a distinction between advocacy, advice and legal representation. There might be overlaps, but those three things are different and each of them needs to be addressed.

It is just on that point, if I may.

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?

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?

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?