Chamber and committees

My last question is about an issue that we have discussed in previous committee meetings, which is the role of defence counsel in the questioning of witnesses—although this can sometimes also apply to the actions of the Crown. Is that questioning conducted in a fashion that is compatible with the legitimate aspirations of trauma-informed practice, which I entirely endorse?

One line of argument that has been put to us is that we must be satisfied that the right questions are being asked, and in the right fashion, to ensure that a fair trial is being delivered. Obviously, I want trials to be undertaken fairly, but I am concerned that trauma-informed practice might be disregarded in the name of ensuring a fair trial. That relates particularly to the conduct of defence counsel and defence agents. I would be interested to hear your observations about what the court and the judiciary can do to ensure that we have fair trials that are conducted in a fashion that is not damaging to witnesses who come forward in good faith.

Have you had to do so?

I think that, for the committee’s benefit and to serve our understanding of the thinking that has underpinned your work, we would like to hear just a little bit more about that. Having listened to the evidence on the bill’s other contents, I find that what has really resonated with me is that culture issue and the necessity of changing the dynamics and the nature of the process that is under way. If I understand you correctly, you are telling us that cannot really achieve that by tinkering with what, for argument’s sake, is a Victorian set of procedures. Instead—and I was struck by this in your report—you need to go in with a blank sheet of paper. I think that your response to that would help us understand the cultural point that you are making.

Thank you very much.

I begin by commending the Constitution, Europe, External Affairs and Culture Committee on an outstanding report, which is a seminal moment for this Parliament and this parliamentary session for two reasons. First, the convener has managed to draw together shades of opinion right across the parliamentary spectrum in a report that unanimously concludes that, as a consequence of Brexit, the powers of this Parliament have been undermined by the actions and response of the UK Government. I do not say that to be provocative—I say it to recognise and admire the strength of conclusion that has been arrived at by the thinking and contribution of members from across the political spectrum.

The second reason that it is a seminal moment is that we are beginning to confront the democratic difficulty that Scotland now finds itself in. In 1997, the devolution referendum resulted in the overwhelming consent—the utterly gobsmacking level of consent—of the people of Scotland to the establishment of the Scottish Parliament. Attracting that degree of consent from the public in Scotland was an absolute triumph for the founders and architects of devolution.

Arguably, as I said in my intervention on Mr Bibby earlier, the independence referendum in 2014 indicated, much to my concern and distress, that people in Scotland at that stage did not want Scotland to be independent. I think that it is a reasonable conclusion to draw that they reaffirmed their support for devolution.

Along came the Brexit referendum in 2016. The Scottish people voted decisively against Brexit, but Brexit was forced down their throats by a Conservative Government that was determined to pursue the approach that it has taken. However, in so doing, it has undermined the democratic consent that was given by the people of Scotland in 1997—nobody has addressed that argument yet. Fundamentally, the people of Scotland have had the settlement that they voted for comprehensively and overwhelmingly in 1997 undermined by a Conservative Government that is pursuing the implementation of Brexit, which people in Scotland did not vote for. That has had implications for devolution that people in Scotland never consented to.

If we need evidence of what that undermining of the devolution settlement looks like, it looks like the disregarding—the rendering as meaningless—of the Sewel convention, given the number of times that it has been breached since 2018. If Mr Greene thinks that the Scottish Parliament would be able, without interference from the United Kingdom Internal Market Act 2020 and the UK Government, to do all that he asked it to do, he is living in fantasy land. All that we need to look to is the deposit—[Interruption.] Mr Greene has shouted out to me that we have not even tried. We have tried things such as the deposit return scheme. For heaven’s sake, glass recycling is such a constitutional threat that we cannot be allowed to get on with it because of its threat to the internal market act. That act is being used to erode the Parliament’s ability and confidence to legislate in areas of its devolved competence. As a former minister, I can imagine what the advice to current ministers about the ability to confidently legislate will be like. Various caveats will be put in by civil servants for good reason—because of the precedent that has been set by the malicious actions of the Secretary of State for Scotland in undermining the deposit return scheme.

This is when I get to people such as Mr Rowley. Mr Rowley knows that I hold him in the highest personal regard and admiration. However, I am very disappointed by his speech today. He tried to take the Alex Cole-Hamilton approach to the debate, which flummoxes me entirely, in trying to equate the determination of the Scottish Government to act within its legislative competence with the right of the Secretary of State for Scotland to act on a malicious and unfounded basis in eroding the deposit return scheme. I cannot fathom that. I cannot see how he can equate those two actions.

The debate prompts a big question, which my colleague Kate Forbes has put to Parliament today. What do we do about this? Do we return to our tribal backgrounds and criticise people—maybe I have just spent the past four and a half minutes doing exactly that—or do we step forward as a united Parliament, as the committee has done under the leadership of my colleague Clare Adamson, and say that this is the moment when we all have to say that the Parliament is in jeopardy and is under threat and that we have to realise the scale of that threat and do something about it together without trading our different views? If that requires me to change my behaviour, I will do so for the occasion. We have to recognise that the Parliament’s powers, which our people voted for decisively in 1997, are being eroded in front of our eyes.

If a different Government occupied the front bench, it would still struggle with the issues that I am raising because of the internal market act and what has been done to undermine devolution by the back door. The people of Scotland have not been asked. The question for this afternoon is: are we prepared to rise above that and defend our Parliament and the democratic decision of the people of Scotland in 1997?

Will the cabinet secretary give way?

Mr Bibby made the important point that two additional tranches of powers have been allocated to this Parliament. I would contend—I think that Mr Bibby would agree—that that was a result of democratic pressure within Scotland to acquire those powers, as was the 1997 referendum. Does he think that it is a serious democratic issue and problem for Scotland that those powers have been eroded in the aftermath of Brexit and that the people of Scotland have not been asked about that?

I am pleased that the minister has made the point about the view of the Welsh Government. If we are to get to a position of unanimity, based on what the convener and her committee have provided as foundations, the position of the Welsh Government reduces the tension in the debate, because it makes it clear that, independently, a Labour Administration in Wales has come to the same conclusions as the Scottish Government and the committee about the impact on devolution. Is that not a strong foundation on which we can build some unity?

I am enjoying Clare Adamson’s thoughtful and substantial speech. Has the committee considered what the respective roles of the United Kingdom Government and the devolved Governments should be in settling the contents of common frameworks? It strikes me that, without there being appropriate opportunities for the devolved Governments to be able to protect the rights of the devolved settlements from the United Kingdom Government, which, ultimately, as we have found out through the use of section 35 of the Scotland Act 1998, has a final say over many aspects of the constitutional exercise of authority, and unless that protection is given to devolved Governments, the common frameworks will be as meaningless in the future as they are today.

Will Mr Stewart give his opinion on the question that I put to the convener about whether there should be changes to the intergovernmental frameworks to enable the devolved Governments to better protect the devolved settlements than has been the case until now because of the United Kingdom Government’s overriding power? If that is not to be the case—