Chamber and committees

There are two parts to my answer. I wrote to the committee in response to the convener’s letter. Those are fair points. I hope that I have managed to give some reassurance that intensive work is under way. We are living with the reality of a major global pandemic, which undoubtedly interrupted our justice system and the implementation of legislation. However, I want to give the committee the assurance that that is something that I will always test because, although it is true that we are still living with the consequences of the pandemic, I am conscious that folk get a bit weary of hearing that. I will always want to absolutely test pace and progress, and I hope that I have given some reassurance to the committee on legislation that is still being implemented.

There are some complexities with regard to the timescale for special measures. Members will know the purpose of the special measures. One area—the creation of a register of solicitors—will require particular detailed work; it will require regulations, consultation and a considerable amount of work. The bill puts particular responsibilities on the Government with regard to who we engage with—for example, the Faculty of Advocates—and requires us to take certain actions.

We need to establish the register of solicitors and we need to recruit solicitors. Consultation would be needed on and round that, prior to any regulations being brought forward. That piece of work underpins the policy drive, with regard to special measures, to prevent people in certain circumstances from representing themselves or leading their case in the civil courts. That goes back to Mr Findlay’s point about abusers being able to use civil courts as a platform to further torment people who have been victims, such as victims of domestic abuse and violence. If people are not able to represent themselves, they need to be represented. That is about fairness in the system; we cannot compromise the rights of any particular party.

With regard to part 3, we are probably looking at around two years. I put that on the record now.

Again, we have carefully looked at that, bearing in mind the operational independence of our courts and prosecutors, and that it is not in anybody’s interest for those processes to be interfered with. Ultimately, the victims and witnesses commissioner is about amplifying the voices of victims and witnesses to ensure better and consistent system-level change.

The commissioner can engage with individuals and can consider the individual experiences of people, but that is to improve understanding of the national picture. Bearing in mind the discussions that we have had so far about concerns about duplication and costs, I am satisfied that the commissioner, as is the case with other commissioners, will not take on or intervene in individual cases.

Thank you, convener, and good morning.

The Victims, Witnesses, and Justice Reform (Scotland) Bill puts victims at the heart of the justice system. Parts 1 to 3 of the bill are essential to the delivery of that ambition. I will briefly go over the aims of those parts.

Part 1 of the bill, on establishing an independent victims and witnesses commissioner, will give victims an independent voice to champion their views and hold justice agencies to account. Part of the commissioner’s role will be to monitor how agencies are complying with the standards of service and the victims code.

There is long-standing and clear demand for the role from victims. The issue has been discussed at the victims task force for a number of years, and our public consultation revealed that there is strong support for the role. The bill delivers on a commitment that was made to victims and the wider public via our manifesto and our programme for government to establish such a post. The role will benefit victims and witnesses of crime by providing a statutory mechanism for their voices and experiences to be heard.

Part 2 of the bill aims to put trauma-informed practice at the heart of decision making in the justice system, to improve people’s experiences of justice, and to help them to participate effectively.

I have followed the committee’s scrutiny of those parts of the bill with interest, and I am pleased that there has been universal agreement among the committee’s witnesses that the justice system must operate in a trauma-informed way.

The committee has heard from experts about the ways in which trauma can affect people, and victims and survivors have spoken powerfully about the lasting impacts of trauma and how the justice process itself can be retraumatising. We cannot remove all risk of traumatisation from the justice system, but the bill will put in place measures that aim to minimise that risk. If people are treated in trauma-informed ways, that can help to keep them engaged with the justice process, help to ensure that trauma does not prevent them from participating effectively, and help them to give their best evidence. As well as significantly improving the experiences of witnesses, that can improve the quality of the justice process for everyone involved.

The bill builds on work that is already being done by justice partners, and it aims to embed the principles of trauma-informed practice within our justice system. It includes a definition of trauma-informed practice to help to ensure a consistent understanding and a consistent approach. It requires justice agencies to make efforts to reduce retraumatisation and to publish standards on trauma-informed practice.

The bill also requires the judiciary to take trauma-informed practice into account when scheduling court business, and it empowers the courts to set rules that are designed to ensure that proceedings are conducted in trauma-informed ways.

Part 3 of the bill covers special measures in civil cases. Special measures protect people in court who might be vulnerable. The provisions are a reflection that domestic abuse can arise in civil cases as well as in criminal cases. The existing legislation on special measures covers civil cases as well as criminal cases, but there have been requests over the years to improve the legislation on special measures in relation to civil cases. The Children (Scotland) Act 2020 includes provisions to enhance special measures in some cases. That act was, of course, about just family cases. The bill is an opportunity to extend the provisions to cases generally.

The bill is central to the delivery of our vision for justice. It brings forward proposals for transformational change to the system, which have emerged from respected review processes and directly from victims. The Government is acting on the evidence and on what we have heard from people with experience of the system. It is important that the bill is the Government’s response to what we have heard from victims.

I look forward to the committee’s questions.

When a financial memorandum is produced, it is based on the detailed evidence that is available at the time. I stress that we have engaged extensively with our stakeholders and partners, who will ultimately have operational responsibility to deliver many aspects of the bill.

We were very transparent and up front about the financial memorandum. The costs are far easier to define for parts 1, 2 and 3, which we are discussing this morning. There are other parts of the bill—Mr Findlay is right to point to that—for which estimates and minimum costs have been given. That is in recognition of variables and operational decisions that have yet to be made.

That is an on-going process. I have received correspondence from the finance committee in that regard, and we will continue to engage.

I would not articulate that as a “gap”, Mr Findlay, purely on the basis that the model for the victims and witnesses commissioner is in line with the model for most other commissioners. I may well stand to be corrected but, by and large, commissioners are accountable to Parliament, so if they are reporting on significant abdication of duty or non-compliance with legislation or standards of service, that information is made available to Parliament, and it is for parliamentarians to consider what further action would be appropriate.

We have been conscious of that issue from looking at some of the policy areas in relation to improving the experience of, and the support that is available for, child witnesses. For example, the work around the bairns’ hoose is cross-portfolio work. The Children and Young People’s Commissioner Scotland role is a model of a commissioner working well.

It is correct to say that the victims code and the standards of service for which criminal justice agencies are held to account specify children. We have been working to ensure that the connectivity and links between the Children and Young People’s Commissioner Scotland and the victims and witnesses commissioner are appropriate and that there is no duplication. For example, section 10 of the bill gives the commissioner powers to carry out an investigation, but not to duplicate the functions of others. The bill is crafted to ensure that we have clarity instead of confusion and that the victims and witnesses commissioner cannot go into the functions and duties of another commissioner or, indeed, another body. However, section 6 empowers the victims and witnesses commissioner to engage with the Children and Young People’s Commissioner Scotland.

We want to ensure that there is as much clarity as possible. If there are other matters that, in light of the evidence, we need to resolve or if further detailed consideration needs to be given, we will certainly do that.

That has been my experience as a minister in a number of portfolios. I appreciate that you want to establish as much information about the costs as early as possible: that is in the interests of transparency and accountability to Parliament and committees. However, given the work that goes on in and around a bill—particularly around implementation—and the purpose of scrutiny and evidence, there are times when financial memorandums are revisited.

As I have said, the purpose of the commissioner, which—we can establish this—is not an uncommon model for commissioners, is to look at and engage with, although not to act on, individual cases with a view to wider system change. It is not uncommon for commissioners to call for a change in policy or legislation or to call for action, but that is done at a system-wide level, based on the knowledge about and understanding of an individual case or many cases.

As I outlined in my answer to Ms Dowey, the commissioner will have broad powers to require criminal justice agencies to provide evidence on investigations that the commissioner undertakes. The commissioner could require agencies to provide clear information that they are compliant with trauma-informed practice and that they are adhering to the victims code and the standards of service. Like other commissioners, the commissioner would have a duty to publish reports and to make recommendations, which would all be on the public record. The commissioner could impose a requirement on agencies to respond to a report, and would have to publish statements on the responses that they have received to recommendations or reports that they have made.

That is a well-established model. The best example of where that has worked well is the Children and Young People’s Commissioner Scotland, which has certainly been part of the dialogue and has contributed to many policy and legislative changes in the Parliament. Over the history of the Parliament, that commissioner has shifted and changed our dialogue on how we support children and young people. Victims and witnesses are seeking to achieve a commissioner that is on a par with the Children and Young People’s Commissioner.