Chamber and committees

The working group on misogyny and criminal justice received 930 responses to its lived experience survey. The vast majority of the respondents were women and girls. The experiences that were reported are harrowing, and they can and should be unsettling—certainly for women and girls, but also, I would hope, for men.

The examples include the following:

“Being threatened by a man in a pub for not laughing at what he thought was a funny remark.”

“I have been called a slut in a car park because I accidentally moved my trolley too close to a man’s car.”

“In a club, I was grabbed by a man. He groped my bottom and tried to touch my breasts. I pulled away. He laughed and called me frigid.”

“One man tweeted that they would love to watch me getting my teeth kicked in, many others said I was too unattractive for my experiences to be true, they didn’t believe it had happened.”

The pernicious impact of misogyny continues to be felt by women and girls all over the world, including in Scotland, and it is time for action.

In November, I closed the debate on men’s role in eradicating violence against women and girls. In the debate, I agreed to take an intervention only from any man in the chamber who had never heard misogynistic or sexist comments in an all-male environment, or from any man who had heard such comments and had challenged them every time. There was silence; no intervention was made—and I myself could not have made an intervention on that basis.

Those real-world examples of misogyny are important, because they are the reality for women and girls in Scotland, day in, day out, and they demonstrate the need for action. The examples will not come as a surprise to women in the chamber. However, some men might be surprised by quite how routine it is for women and girls to experience that kind of behaviour. As men, we say that we find such behaviour unacceptable, although the uncomfortable truth that must be confronted is that some of us do not actually find it unacceptable, or it would not be as commonplace as it is. It is important that men, who do not experience such behaviour on a day-to-day basis, acknowledge that there is nothing at all unusual or exceptional about it.

Misogyny, in whatever form it takes, belittles women and girls. It drains confidence and limits ambition. It can affect the potential of individual women and girls, and groups of women and girls, by making them more reluctant and less able to play a full part in all aspects of everyday life. It represents a barrier to achieving a growing economy and a dynamic society in which everyone can reach their full potential, free from discrimination.

As its title suggests, this afternoon’s debate is on misogyny and criminal law reform. I am under no illusion; I know that changing the criminal law, on its own, will not be sufficient to address the age-old problem of misogyny. However, criminal law reform can help to spur wider social transformation by encouraging and requiring behavioural change through new laws on what amounts to criminally unacceptable behaviour.

I welcome Jamie Greene’s amendment. I absolutely agree that the reforms that we will propose in our forthcoming criminal justice reform bill will be crucial in ensuring that the criminal justice system delivers a better experience and better outcomes for victims, especially women and girls. I look forward to working with Jamie Greene on the bill and having a shared focus on the importance of putting victims at the heart of the system.

There is a lot in Pauline McNeill’s amendment to the motion that I support. Members will all agree on the need to focus on education and will recognise the importance of tackling misogyny in social media. However, the amendment expresses regret about the length of time that it has taken to get to this point. The Scottish Government will accept the amendment, but I want to put that support in context.

We do not accept that there has been delay in bringing forward the consultation. The initial report of the First Minister’s National Advisory Council on Women and Girls in 2019 recommended criminalising serious misogynistic harassment to fill gaps in the existing law. The initial approach was to seek to respond to that request through hate crime legislation. However, as members will be aware, strong views were offered that that was not the appropriate way to deal with misogyny. Therefore, in February 2021, the Scottish Government established an independent working group on misogyny and criminal justice, chaired by Baroness Helena Kennedy, to consider how the criminal law deals with misogyny. The group published its final report in March 2022, and we are now consulting on draft laws—taking into account the experience of previous consultations on specific provisions—to implement each of the recommendations.

As the Labour amendment acknowledges, that is complicated work, because it is not just one item of criminal law that is proposed—five separate items are being consulted on. The idea that the Scottish Government is being tardy in that regard is belied by the fact that, if we can achieve the legislation that we hope to achieve, we will be the first jurisdiction in the world to do so.

I turn to the working group’s report. It made four recommendations for reform of the criminal law. It recommended the creation of a new offence of misogynistic harassment of women and girls; a new offence of issuing threats of, or invoking, rape or sexual assault or disfigurement of women and girls; a new statutory aggravation relating to misogynistic behaviour where a crime such as assault, criminal damage or vandalism is aggravated by misogyny; and a new offence of stirring up hatred of women and girls.

The recommendations seek to make it easier to prosecute misogynistic behaviour that does not easily fit into the framework of existing criminal offences, such as threatening or abusive behaviour, breach of the peace and sexual offences. Equally importantly, they clearly label criminal misogynistic behaviour for what it is, so that potential perpetrators and victims are aware that such behaviour is criminal.

In its response in April 2022, the Scottish Government made a commitment to consult on draft legislative provisions. The consultation paper has now been published, and, as recommended by the group, we have developed the provisions as law that specifically protects women and girls. Criminal law is usually provided for on a gender-neutral basis. However, the working group is clear that the law should reflect the fact that it is specifically women and girls who need protection from sexual harassment and misogyny, and the Scottish Government fully endorses that approach.

The comprehensive response that is being consulted on ensures that there will be new, clear and specific powers to deal with situations such as when men or boys harass an individual woman or girl, or a specific group of women and girls, by behaving in a threatening, sexual or abusive way that is likely to cause them to experience fear, alarm, degradation, humiliation or distress; behave in a sexual or abusive manner that causes a woman or girl to experience fear, alarm, degradation, humiliation or distress; commit certain existing offences in a manner that is motivated by or demonstrates misogyny; send threatening or abusive communications invoking rape, sexual assault or disfigurement to a woman or girl, or a group of women and girls, to intimidate or silence women, especially online, with the effect of discouraging women from participating in public debate; or use threatening or abusive language to communicate threatening or abusive materials, intending to stir up hatred of women and girls in others.

In the approach that we have taken, there are issues to which I would like to draw members’ attention. Although the group recommended four new pieces of criminal law, we are consulting on five. The group proposed the creation of a new offence of public misogynistic harassment. However, we have decided that it is better to split that into two new pieces of criminal law, so we are seeking views on two separate offences: one of misogynistic harassment, and one of misogynistic behaviour. That is because, when we considered the kinds of behaviour that the group thinks should be criminalised, we came to the view that the offence that is proposed by the report seeks to criminalise two different forms of behaviour.

The first can be described as misogynistic harassment, which is behaviour that is directed at a specific woman or girl, or group of women and girls, that amounts to harassment of that woman, girl or group of women and girls. That could include, for example, shouting sexually abusive remarks at a woman in the street, or using abusive language at a woman who refuses to engage in being chatted up or rubbed up against in a crowded place.

The second can be described as misogynistic behaviour that is not necessarily directed at a particular victim but which is likely to harm those who might encounter it. It could include, for example, watching pornography in a public place, where it is quite clearly visible or audible, or having loud conversations about what should be done sexually to women in a place where others can hear.

Another way in which we have adapted a group recommendation is that, although an offence of public misogynistic harassment was suggested, the offences that we are consulting on can be committed in both public and private. When it comes to considering the behaviour to be criminalised by the offence, we did not consider that there was justification for why harassment occurring in a private place—such as an office in which people work—should be treated differently from the same behaviour occurring in public.

The consultation runs until June, and I urge anyone who is interested to read it and respond, setting out their views. If people have concerns that the provisions go too far or do not go far enough, they have the opportunity to voice those views and suggest amendments in response to the consultation.

We consider that the working group’s report provides clear and compelling arguments for reform of the criminal law to better enable the justice system to respond to different forms of misogynistic behaviour that is experienced by women and girls across Scotland. I ask the Parliament to support the motion.

I move,

That the Parliament condemns the misogynistic behaviour, harassment, threats and abuse experienced by women and girls; notes that such behaviour is carried out mainly by men and represents a barrier to achieving equality by restricting the ability of women and girls to achieve their full potential in all aspects of everyday life; is concerned at the increase in online spaces being used to perpetrate such misogynistic behaviours, allowing people to hide behind anonymity; agrees that action needs to be taken to address such behaviour; thanks the independent Working Group on Misogyny, which is chaired by Baroness Helena Kennedy, for its considered report on how to reform criminal law to address misogyny; welcomes the publication of a consultation paper on draft legislative provisions to implement the Group’s recommendations; notes that the Scottish Government will carefully consider responses to the consultation to ensure that legislation introduced in the Parliament appropriately and effectively criminalises this type of pernicious behaviour, and recognises that legislation alone will not eradicate the centuries-old cultural attitudes that drive such behaviour, and that wider action to address misogyny and promote equality is equally important to change male behaviour and deliver equality for women and girls.

It is not a boast to acknowledge the efforts of policing, justice and community safety partners and to say that Scotland is a safe place in which to live. I do not know whether or not Pam Gosal welcomes that. Their efforts have contributed to a 42 per cent reduction in recorded crime since this Government came to office. That is a statement of fact. I do not know whether Pam Gosal is uncomfortable with that, but that is simply the case.

A great deal has been done to increase the reporting of domestic abuse, which is to be welcomed.

As to Pam Gosal’s bill, I do not know how many times she is going to demand of me that I support her bill without seeing it—indeed, without even seeing, as yet, the analysis of the consultation on it. By all means, let us have a discussion—I have happily already entered into a discussion with her—but at least let us see the evidence before we come to a conclusion.

Those figures show that Scotland continues to be a safe place to live in, with recorded crime at one of the lowest levels since 1974 and down 42 per cent since 2006-07. That is testimony to the continued efforts across policing, justice and community safety partners to deliver a safer Scotland for everyone.

Of course, we recognise that challenges remain, which is why, for example, we have taken robust action to tackle sexual offending and have invested £93 million over the past five years to ensure that victims’ rights and needs are at the centre of Scotland’s criminal justice system.

Thank you for the invitation to give evidence on the draft Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (Scotland) Order 2023. I will make a brief statement about the order and the issue of mutual legal assistance.

The order mirrors the Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) Order 2022, which, in this area of law, allows collaboration across the United Kingdom jurisdictions to support cross-border operations and co-operation. In an increasingly interconnected world, where crime operates without borders, it has never been more important to ensure robust international co-operation to promote justice and to help maintain public safety. The order will enhance our international judicial co-operation framework specifically in relation to mutual legal assistance. Before I explain its contents, it might be helpful for me to outline the context in which the order has been made.

Mutual legal assistance is the formal name for how states request and obtain assistance in other jurisdictions to investigate or prosecute criminal offences. The UK as a whole is a party to the Council of Europe’s 1959 European Convention on Mutual Assistance in Criminal Matters and its additional protocols, which form an essential part of our fight against crime and our co-operation with other contracting parties in relation to criminal proceedings. MLA, as it is known, is an important tool in domestic criminal proceedings and against transnational and international crime.

The second additional protocol to the 1959 convention broadens the scope of available mutual legal assistance among contracting parties and includes specific provisions on requests for hearings by video or telephone conference, joint investigation teams and the temporary transfer of prisoners. As the member of the Council of Europe, the UK ratified that additional protocol in 2010.

In our domestic framework, mutual legal assistance is governed by the Crime (International Co-operation) Act 2003, which states that, for us to request and facilitate certain types of mutual legal assistance, the country must be designated as a “participating country”, as defined by section 51(2). The purpose of the draft order is to designate as participating countries Liechtenstein, Luxembourg, the Republic of Moldova, Switzerland, Turkey, Armenia, Chile and Ukraine. All those countries have ratified the second additional protocol to the 1959 convention, and their designation will allow us to co-operate with them in relation to specific types of mutual legal assistance.

I should say that the order only establishes the ability to provide certain types of assistance to or seek them from the referenced countries; it does not create an obligation to do so. Incoming mutual legal assistance requests from a designated participating country are reviewed by the Crown Office in line with existing practices, including a human rights assessment provided by the Foreign, Commonwealth and Development Office.

I will now detail the specific effect of the provisions for which those countries are to be designated. First, designation for the purposes of section 31 and paragraph 15 of schedule 2 to the 2003 act enables us to assist in requests for a person within Scotland to give evidence by telephone in criminal proceedings before a court in a participating country, in circumstances where that witness gives their consent.

Designation for the purposes of sections 37 and 40 of the 2003 act enables the Crown Office, on request from a participating country, to obtain customer and account information to assist an investigation in the participating country. Designation for the purposes of sections 43 and 44 is a reciprocal provision that enables Scottish authorities to make requests for similar information to a participating country. Additionally, designation under section 45 provides that requests for assistance under sections 43 and 44 must be sent to the Lord Advocate for transmission, unless the request is urgent. Finally, sections 47 and 48 make reciprocal provisions for the temporary transfer of prisoners to or from a participating country to assist with an investigation, provided that the prisoner has given their assent to the transfer.

The draft order will help strengthen our own ability to investigate and prosecute criminality at home and abroad, as mutual legal assistance is a key tool in combating cross-border crime and ensuring justice for Scottish victims of crime. It is important that Scotland, as a good global citizen, plays its part in facilitating international justice co-operation to combat criminality. Being a good global citizen also entails standing with our friends to defend the rules-based order.

In that vein, I emphasise that the draft order deliberately does not designate Russia. Following the invasion of Ukraine, the Council of Europe expelled Russia, a decision unprecedented in the council’s 73-year history. Although Russia ratified the second additional protocol in 2019, the Russian President, Vladimir Putin, announced on 18 January that he had begun the legislative process of terminating Russia’s participation in 21 international agreements associated with the Council of Europe, with retrospective effect from 16 March 2022, the date of Russia’s formal exclusion from membership of the council. We understand that, as yet, nothing has been lodged formally and my officials are awaiting formal confirmation, but Russia’s unprovoked, premeditated and barbaric attack against Ukraine, a sovereign democratic state, removes any basis for the mutual trust and respect for international law that are essential for international judicial co-operation. We are therefore not seeking to designate Russia at present.

We remain committed to improving the provision of mutual legal assistance across borders, and the order will enhance the level of co-operation that we can offer to—and seek from—other countries. I hope that these remarks will be helpful to the committee and I am happy to try to answer any questions.

I will respond first, and then officials will give you the correct answer.

The purpose of the order is to designate the additional countries that I have mentioned. It is possible just now for us to ask each of those countries—or, indeed, any country—for that assistance, or for another country to ask us, without their being designated countries. We can co-operate on that basis already, but the order gives added weight to that, because all the countries that we have mentioned are now part of the rules-based international order. They are now involved in the protocols that we have, and the order gives more force to that.

I have not been involved in such cases—which, obviously, would go to the Lord Advocate—but, in effect, there would have to be quite good reasons for countries not to co-operate. I suppose that, without being added to the list of designated countries with reciprocal arrangements, a country could more easily dismiss such a request and not go along with that co-operation. Therefore, the order gives added weight to the protocols. Moreover, having just told Pauline McNeill that any level of crime might be covered, I should say that I think that there would have to be a different process in relation to international war crimes.

As for Ukrainian people who live here going back to Ukraine or Ukrainians coming here, we must bear in mind that, under the order, the arrangement between countries must be consensual. I am not aware of whether the domestic law in Ukraine is operating as normal—for obvious reasons—and I think that, in relation to war crimes, there would be a different process, which would be started internationally. That is my understanding, but officials might want to add to that.

That is what is specified in the order. Of course, it is quite possible for evidence to be given in other ways—via videoconference and so on—but the order specifies that evidence would be given by telephone, so that is where it will have an effect.

And the prisoner would have to consent to it, too.

I will ask officials to come in, but I am not aware of any area of crime that is not covered by the order. You, too, have highlighted the issue of customer accounts and information—and rightly so—which is obviously to do with the financial aspects of a potential crime. However, that sort of thing will rely on the witnesses’ co-operation. As I have said, though, I am not aware that the order precludes any crimes being looked at—and I see that Vivienne McColl has confirmed that.

We cannot tell other countries what crimes they might want to come to us about and ask for the help of the Lord Advocate and witnesses on. In that case, the answer is yes—any level of crime is possible.

The list of countries is exactly the same. Russia has been precluded by the UK Government, too. The issue is simply that we have a different jurisdiction. I am aware of no tangible differences between our instrument and the one for the rest of the UK.