Chamber and committees

Very briefly. These amendments are in keeping with the theme of a victim’s right to know. As Russell Findlay and Jamie Greene have said, one of the takeaways for the committee when it listened to victims was that they did not feel part of the case in which they were the main complainer. I am very sympathetic to that.

I want to make a few points that are relevant here. First, I am not aware of the current situation. I remember that a former Lord Advocate—I think that it was Colin Boyd—announced to Parliament that, for the first time, the Crown Office would tell complainers and victims why it did not proceed with the cases, when it previously did not do so at all. I have no objection to putting that in law, but I want to know whether the Government is minded to say what the current position is and—

Yes, I agree. It is a principle, but it is for the Government to see how it could bring it about, if it agrees, to make it an efficient part of the system.

Of course I will.

I agree with that. I was also going to say that, between stages 2 and 3, the committee should do something in relation to the Parole Board for Scotland. There has been a long delay between stages 1 and 2—to be fair, I imagine that the Government is trying to resolve other issues in parts 4 and 5—and, arguably, there might have been scope to do a bit more consultation. However, I think that everybody knows that the demands of scrutinising the bill are all-encompassing.

For those reasons, I will probably abstain on most of the amendments if they are put to a vote. That is because, although I agree with what Jamie Greene is saying, I am not comfortable with not hearing from the Parole Board. If, in principle, victims are able to say what they feel about the release of a prisoner—and it is right that they should do so—that could impact on whether that prisoner is released. If I have understood the principle behind it, and if it is not just a talking shop that a victim would go along to in order to say how they felt, we would expect the Parole Board to consider that.

Amendment 245 is about the release of prisoners, which requires a separate discussion.

There are other amendments on the Parole Board, and I feel strongly that we need to hear from the Parole Board on all of those. I hope that whoever makes the decisions about timetables, in consultation with the committee, can allow some time for that.

I am delighted to follow Audrey Nicoll, who has done a fantastic job as convener of the Criminal Justice Committee. I endorse all that she said about our joint work on violence against women and girls.

“Scottish public authorities are at risk of costly court battles because of the ‘unregulated introduction of gender self-identification as a basis for policy’”.

That is from The Herald last week.

To be fair, some of those policies have existed in public life for a while—in fact, probably since about 2014—but, for long enough, they went unnoticed and were not publicly discussed.

Jackie Baillie was right to say, as it says in the Labour amendment, that the Government has failed to produce any serious guidance on how public bodies should manage policies to protect women’s rights to single-sex spaces but also to protect trans people.

The UK Supreme Court is considering whether having a gender recognition certificate changes a person’s sex for all purposes under the Equality Act 2010, so we will need to wait and hear that decision. However, it is at least clear that it is not a requirement for public bodies to base their policies on self-identification. Public bodies are required to base their policies on the provision of single-sex private spaces.

Public Health Scotland, the Scottish Prison Service, the NHS and universities have all gone beyond the law on the provision of single-sex facilities. They have failed to meet their legal obligations in relation to women and girls.

In the case of Fife health board, there was no impact assessment on allowing the medic to use a single-sex changing room. That is despite—and this is important—there being a legal duty to conduct such an assessment. You cannot cut corners, even if you agree with the policy.

It is relevant that the 1992 employment regulations are clear that communal sanitary washing or changing facilities will not be sufficient or suitable if they are not provided separately for men and women, as Fergus Ewing said. That was endorsed by Jackie Baillie.

Dr Michael Foran said that

“There is no plausible legal argument that the 1992 Regulations must permit access on a self-ID basis. Indeed, doing so would be a clear breach of the regulations, and guidance that suggests otherwise is incomplete, misleading or false.”

The central questions are, why do public bodies risk being on the wrong side of the law and where do those policies come from? The Government has to take responsibility in that regard. The Equality and Human Rights Commission pointed out that, in the case of Fife health board, no assessment was done.

Police Scotland’s guidance says that all members of staff are entitled to use toilet and changing facilities that are appropriate to their sex, but, again, the current policy ignores the 1992 regulations. I believe that that is under review, but I am unclear on what the current policy is.

We need leadership on the issue. Women’s spaces are about their right to dignity and privacy as much as they are about safety. Women should be central in the design of those policies, because levels of violence against women and girls have never been higher. None of those examples illustrates that women have been central to the design of those policies.

It was the case of Isla Bryson that probably altered the public understanding of the self-identification policy. It was while Isla Bryson was waiting to stand trial and was placed on remand in a women’s prison that the transition began. The Government seemed to realise that the policy was problematic only when it became public, and the Scottish Prison Service made the decision to divert Isla Bryson to Cornton Vale prison rather than Stirling prison or the planned destination at HMP Barlinnie. However, only after public outcry was there redirection of the destination of the prisoner. Having allowed that to happen was a prime example of where the Government’s policy is contradictory.

We agree with the Scottish Government that special policies should be applied to women offenders, because most women in prison are vulnerable. I do not need to tell the minister that 70 per cent of them have experienced domestic abuse and a third of them have had head injuries because of male violence. To force them to share a space in a female prison with someone who is charged with a sex offence is completely unacceptable to most people, and certainly to the people I represent. The judge found in that case that the offender had a high risk of reoffending, which only serves to highlight the risk that was posed to women.

We do not have clarity over whether female prison officers have to search a male-bodied trans woman. This is the point that I want to make—we cannot make unilateral changes to policy without involving those who are expected to enact that policy. I hope that the Government would at least agree with us on that point.

We have policy capture that is widespread in public bodies, and the Government’s smoke-and-mirrors amendment tells us nothing really about whether it takes any responsibility for that. We will work with the Government to protect women and girls and their right to single-sex spaces, and we will work with it to make that policy work for all people, but I say to it, please take some responsibility for the shambles that we have to endure right now.

Our hearts go out to the people of Ukraine for what they have endured, and their hopes for peace and security for their nation and their right to sovereignty.

Does the First Minister agree that we live in complicated and dangerous times, given the rise of the right in Europe and the unpredictability of the US Administration, and that we must therefore strive for peace and stability in Europe and influence, where we can, all nations that are at war? That includes peace and security in the middle east, where Europe could play a leading role for peace.

I turn to rights of audience. I thank your team for all the work that they have done in responding to the committee’s concerns on that, but it might be helpful to put some of this on the record.

My understanding is that you have tried to address the question of rights of audience because, if a case is prosecuted in the High Court, it will attract not only an advocate depute on behalf of the Crown but counsel on behalf of the defence. You have tried to replicate the current position as best you can and to get the right approach in relation to anything that is likely to attract a sentence of more than five years. However, I do not think that you have said anything about who would prosecute those cases. As you know, in the sheriff court, it is procurators fiscal who prosecute cases, but advocate deputes prosecute in the High Court. Is there still a gap in relation to who appears in the sexual offences court?

If you solve the question of rights of audience to ensure that the accused is represented by counsel in the same way that they would have been had the case gone to the High Court, correspondingly, you need to ensure that there is an advocate depute prosecuting the cases that were previously prosecuted in the High Court. We are talking, for example, about non-rape cases involving serious sexual offences that would attract sentences of more than five years.

I do not know whether you have said anything about that, but it has occurred to me that that needs to be resolved as well.

At the moment, the Lord Advocate would appoint advocate deputes, but, with sheriff court cases, there is no requirement for that, and procurators fiscal would prosecute those cases. If you do not prescribe for the prosecution, you could have a disparity. Does that make sense to you?

We do not have any data to rely on to know whether a majority of 10 to five would achieve, as you have set out, fairness to victims and the accused. It is a bit of a shot in the dark.

However, the same data would be used to determine whether 15 was fairer, too. Do you see where I am going with that?