Criminal Justice Committee

Meeting date: Wednesday, November 15, 2023

Official Report 679KB pdf

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Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 1

Our next item of business is to continue to take evidence on the Victims, Witnesses, and Justice Reform (Scotland) Bill. I remind members that we are at stage 1 of the committee’s scrutiny of the bill. Today, we will focus on parts 1 to 3 of the bill.

I am pleased to welcome to the meeting the Cabinet Secretary for Justice and Home Affairs, Angela Constance, and Scottish Government officials. Heather Tully is from the criminal justice reform unit, criminal justice division; Lucy Smith is from the victims and witnesses unit, criminal justice division; Simon Stockwell is from the family law policy unit, civil law and legal system division; and Kirsty Anderson is a solicitor in the legal directorate.

I refer members to papers 1 and 2. I intend to allow around 90 minutes for this session.

I invite the cabinet secretary to make an opening statement.

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.

Thank you very much, cabinet secretary.

We will move on to questions. I intend to invite questions on part 1 of the bill first. We will then move on to parts 2 and 3 in turn.

I will begin with a general question on part 1, which proposes the establishment of a victims commissioner. We have heard mixed views on that proposal. Some witnesses are clearly very supportive of it, but others have raised concerns about, for example, whether that is the best use of limited resources, whether we need another commissioner, and a possible conflict with the role of the Lord Advocate. I ask the cabinet secretary for her reflections on some of the concerns that have been raised.

That is a good place to start, convener. In response to your question, I want to reiterate and expand on what I have said about the case for a victims and witnesses commissioner and the support for our proposition. I also want to acknowledge some of the concerns about costs and your point in relation to the Lord Advocate’s powers.

We are all operating in a fiscal reality, of course, but there are provisions in the bill that enable the victims and witnesses commissioner to share back-office functions. A number of commissioners already do that.

The bill does not disqualify an existing commissioner from being appointed to the new role. Any commissioner would need to comply with the Scottish Parliamentary Corporate Body around things such as the office location. Many commissioners are located in shared premises in Bridgeside house in Leith, in the existing Scottish Government estate, or in the existing public sector estate.

On the case for a commissioner, the bill is about the need for an independent voice and a champion who will challenge criminal justice agencies. In my opening remarks, I mentioned that the role also brings an additional statutory mechanism that enables voices and experiences to be heard. A key role of the commissioner will be to monitor compliance with the victims code and the standards of service, including the requirement for agencies to actively demonstrate trauma-informed practice, and, in that manner, to monitor how the rights of victims and witnesses are being respected. The commissioner will, of course, be accountable to Parliament.

The proposition has been developed over a number of years through the work of the victims task force, which produced a paper back in 2020. Victim Support Scotland produced a paper entitled “Making the case for a Victims’ Commissioner for Scotland”. Its case hinged on the need for victims and witnesses to be heard and to be able to influence systemic change and change at the strategic level.

I was also struck by the correspondence on the bill from Lynn Burns. She said that the role was an opportunity for a commissioner to represent all victims, which is different from the role of individual agencies, and that, in many ways, it would be a “first step”—that is probably why it is in part 1 of the bill. She described the role as a “conduit” at a strategic and systemic level between Government, justice agencies and people who are affected by crime.

With regard to the Lord Advocate’s powers, I am clear that there is nothing in the bill that in any way interferes with or disrupts the Lord Advocate’s constitutional powers with respect to prosecution decisions or her other functions. The bill simply acknowledges the role of the Crown Office and the fact that it has functions that have an impact on the treatment of victims. In my view, a victims and witnesses commissioner should be able to make recommendations, but only in respect of the Lord Advocate’s functions in relation to the treatment of victims, not in relation to those powers that only the Lord Advocate has the constitutional authority to undertake.

Thank you—that is a really helpful update.

I have a couple of supplementary questions that I might come back to later if we have time, but first I will open up the session to members. I will bring in Rona Mackay and then Fulton MacGregor.

Good morning, cabinet secretary, and thank you for that helpful overview—a lot was covered in that. I want to pick up on one part of it, for clarification. You said that it is possible that the role would be open to an existing commissioner. I wondered what you meant by that. Do you mean that another commissioner would take on that aspect as an additional role or as part of their portfolio, rather than having an individual victims commissioner?

The legislation provides for a distinct role of victims and witnesses commissioner; it does not disqualify an existing commissioner from taking on that role. I ask our lawyer or perhaps Lucy Smith from the policy team to confirm that I have articulated that accurately for the record.

The provisions in schedule 1 to the bill concern the appointment of a victims and witnesses commissioner, and state that it does not prevent an existing commissioner from having that function. The function cannot be given to another public body, but it could be given to a commissioner. If the committee and Parliament so chose, that could be an option, rather than having a specific separate body.

Thank you. That is interesting.

I will bring in Fulton MacGregor and then Sharon Dowey.

Good morning, cabinet secretary and officials.

To follow on from Rona Mackay’s question, we heard some concerns from the Children and Young People’s Commissioner Scotland about a “lack of clarity” and a potential “overlap” between its role and the role of the proposed victims and witnesses commissioner. Has the Government looked at that? Do you think that there might be a case for making that clearer?

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.

10:15  

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.

Thank you.

Earlier, you said that the role will provide a statutory mechanism for the voices and experiences of victims to be heard. You also said that it would give them an independent voice and champion and that it would monitor compliance. However, there are already many groups and organisations out there that could perform that same function. Rape Crisis Scotland, Victim Support and Scottish Women’s Aid have all expressed concern that funding for the commissioner should not take funding from the front-line services that they provide. In the Finance and Public Administration Committee concern was also expressed that

“it is becoming regarded as a casual thing to suggest and implement the establishment of another commissioner, despite it being an expensive extension of our public sector.”—[Official Report, Finance and Public Administration Committee, 10 January 2023; c 20.]

We all know that finances are finite. We will have to find the money from somewhere. Where is the money coming from? Can you guarantee that it will not be taken from existing front-line services?

It is a completely different function from the role and purpose of the front-line services. Ms Dowey is right that investment in a victims and witnesses commissioner should not be taken from front-line services. Of course, we operate within a fiscal envelope. I understand and am respectful of the fact that people have a duty to test the costs and the detail in financial memorandums for any new proposal.

You quoted the finance committee. I can confidently say that the approach to consideration of a victims and witnesses commissioner has not been “casual”. Work has taken place over a number of years, including work by the victims task force and Victim Support Scotland, as well as our consultation on the bill. I dispute any inference that our proposal to bring forward a victims and witnesses commissioner is, in any way, “casual”. The proposal is a direct response to a direct demand from victims and witnesses.

The commissioner’s role is designed to complement and not to duplicate the role of front-line services. I will give some examples. The commissioner has broad powers that front-line agencies do not have, including powers that will require agencies to provide information to determine whether they are compliant with the updated victims code and standards of service.

The commissioner will also have a duty to publish reports and recommendations and will have powers to require agencies to respond to any report that is made by the commissioner. The commissioner is also required to publish any statements that the commissioner receives from agencies in response to recommendations.

Therefore, the role of the commissioner is very much about structural and systemic change and is distinct from the role of individual agencies that support individuals or provide front-line services.

You said in your opening statement that all organisations are supportive of bringing in trauma-informed practices. Those organisations have highlighted all the issues that we have highlighted, so would the money not be better spent on fixing the things that we already know are wrong? The money is going to have to come from somewhere.

The money is going to have to come from somewhere and, after the session that we had last week on pre-budget scrutiny, I think that we are all well apprised of the challenges that we face. I still contend that there is added value and, therefore, merit in investment in a victims and witnesses commissioner, because it will hold criminal justice agencies to account on how they implement and put into practice trauma-informed approaches.

I have a continuation of the line of questioning from my colleague Sharon Dowey. Police Scotland and the Crown Office have both written to the Finance and Public Administration Committee with concerns about the bill’s financial memorandum, and the finance committee’s convener has written to this committee’s convener and to you about that.

Some of the biggest concerns relate to the cost of sex crime courts, which are mentioned in part 5 of the bill and are therefore a matter for another day. However, the cost of the commissioner is also cited as an area of concern. In that light, is the Scottish Government revisiting, reassessing or re-evaluating the cost of the bill?

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.

Is the cost being re-evaluated or reassessed?

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

In general terms, is the financial memorandum that accompanies a bill always a work in progress, with the capacity to change as the bill evolves?

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.

Thank you for that. In opening, you said that a commissioner would have the ability to hold agencies to account. The Law Society of Scotland has highlighted that the bill does not contain any enforcement mechanism in the event of any agencies failing to co-operate with the commissioner. In other words, the police and the Crown Office could, theoretically at least, ignore or not engage with the commissioner, and apparently there would be nothing that anyone could do about that. Will that gap in the bill be addressed by the Scottish Government?

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.

So, Parliament would need to address any potential non-compliance—that would not be part of the bill, because that would be inconsistent with other commissioners.

Yes.

Thank you. An extension of that is the view of the Crown Office and Police Scotland that the commissioner should not be allowed to become involved in individual cases. They claim that its doing so would potentially prejudice legal proceedings. Do you believe that it is reasonable and straightforward to empower the commissioner to act in certain cases without interfering with justice?

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.

Okay. I have had dealings with the Children and Young People’s Commissioner Scotland in relation to the specific case of a baby who died. I did not realise that they were perhaps going beyond their remit. I know that you cannot speak to that, but surely there will, due to the very nature of the criminal justice system, be cases that require the commissioner to engage and perhaps take action and make some form of immediate intervention.

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.

Thank you.

Good morning. I will begin by stating what I have already said on record: I have never been keen on having a lot of commissioners. I struggle to see how the proposal would actually make any difference to victims. However, I am trying to keep an open mind.

10:30  

My first question follows on from Russell Findlay’s. The rule of law dictates separation between Parliament and the courts. As you have said, the Lord Advocate has a statutory legal function and is independent. Therefore, it is not possible to create a commission that has powers to challenge those statutory bodies. If it did that, it would be interfering with the rule of law and the independence of the Crown. Is not that the first problem?

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.

Surely there is a big difference between a victims and witnesses commissioner and the children’s commissioner, which does not deal with the court system or the Crown Office. Surely the distinction is that you want to create a commission that cannot interfere with statutory functions. I take your point about the children’s commissioner being able to influence policy—on the definition of “child”, for example—but I do not think that there is a straightforward comparison. We hear from victims about their experiences of long delays, of the failure of the Crown Office and the police to communicate properly and of the court system—the physicality of the court and issues with giving evidence. The bill is trying to deal with all that anyway, through trauma-informed practice and evidence on commission.

I struggle to see what the commissioner will do, other than saying, “Report to me on this,” as you mentioned. The commissioner cannot go beyond that in any way.

I point to the fact that the Children and Young People’s Commissioner operates in an environment that is quite legislation heavy—for example, it involves the children’s hearings system, and a small proportion of children and young people become involved in the criminal justice system. Therefore, it is a fair comparison. All the things that you mentioned, such as court rules and procedures, scheduling, the environment and pre-recorded evidence, have a direct link with trauma-informed practice and trauma-informed approaches. Although the operational delivery of those matters rests elsewhere, the purpose of the bill, in cementing and placing duties on people to demonstrate trauma-informed practice, is to be a lever. It is not the only lever, but it is certainly a lever for changing how operational decisions are made and implemented.

Does that not call into question the existence of a commissioner—and, I have to say, the excellent work that Victim Support Scotland has done? That organisation is Government funded and has been a champion for victims. It has appeared before the committee on many occasions. Does what you have said not compromise the funding of a third sector organisation that is already effective?

Victim Support Scotland has been one of the biggest advocates for a victims and witnesses commissioner. It published a paper making the case for such a commissioner in 2021. I know that Victim Support Scotland’s Kate Wallace has given evidence to the committee.

However, do you not see any compromise having to be made between the roles of a commissioner and of a very effective victims’ organisation?

I do not, Ms McNeill. Those are distinct roles, which complement each other. I think that I have given some clarity about learning from how commissioners are established more broadly, and how we have made efforts to ensure that there is no inappropriate duplication. To be honest, in my experience as a minister, dealings with commissioners are always quite formal—a few times a year, at arm’s length, and with an exchange of correspondence—but engagement with stakeholders and front-line organisations is always more intense and more frequent.

Before we move on to part 2 of the bill, I have a final question that relates to the British Transport Police, which sent in a written submission. In relation to parts 1 and 2, it questioned why the BTP was not considered to be a justice agency in the same way as Police Scotland is.

You will be aware that BTP representatives were in the Parliament just the other week. They spoke about a range of things, including the BTP’s railway guardian app, which enables travellers to report crimes and offences while travelling. In conversation with me, they were keen that the app be extended to women, and felt that it was relevant to safe travel for women.

Are there difficulties in and around that? If so, is the Scottish Government looking at ways to ensure that the BTP’s status, if you like, does not hinder the objectives of the bill?

The BTP does great work. As we all know—I am stating the obvious here—it works across these islands. It is important to stress that we will always have further discussions with agencies—the BTP and others—if they seek to do more, particularly in pursuit of the aims of the bill.

The purpose of our investment in the knowledge and skills framework for the justice sector is to provide practical guidance and support for the implementation of trauma-informed practice. It is clear that the BTP undertakes many initiatives to put that into practice, and we are happy to explore that more with it.

The bill builds on previous legislation. The agencies that have duties placed on them in the Victims, Witnesses, and Justice Reform (Scotland) Bill are listed in the Victims and Witnesses (Scotland) Act 2014. We are of course cognisant that the BTP operates in other areas, and our legislation can only apply to operations in Scotland.

Our door is open if there is more that we can do to work with the BTP and to work in partnership. I am also conscious that we are the first jurisdiction in the United Kingdom to legislate to put trauma-informed practice into the very heart of legislation and our justice system. We will want to share that with others and work with others.

Thank you very much—that is a helpful open door. That response might help us to segue into considering part 2 of the bill, on embedding trauma-informed practice.

We heard some excellent evidence on trauma-informed practice a couple of weeks ago from Dr Caroline Bruce and from Professor Thanos Karatzias of Edinburgh Napier University. Professor Karatzias made a point in response to a question about the whole-system embedding of trauma-informed practice. He said that the principles of trauma-informed practice are quite general and involve

“safety, choice, collaboration, trustworthiness and empowerment.”—[Official Report, Criminal Justice Committee, 1 November 2023; c 2.]

However, different elements might apply in different parts of the justice sector. For instance, the principles of safety and choice are perhaps more relevant in a court setting, while principles of recovery might be more important and relevant in prisons.

Does the cabinet secretary consider that the provisions of the bill will support a whole-system application of trauma-informed practice—as set out, for example, by Professor Karatzias?

In broad terms, yes. The provisions in the bill seek to do two things. We indeed want systemic change, and we want to develop a shared understanding and consistency of approach. We want all that, on the one hand. On the other hand, there is a recognition that justice agencies will need flexibility to implement the provisions in a way that is tailored to their context, for the very reasons that you have outlined. The bill does that by creating a statutory definition of trauma-informed practice that requires agencies to have regard to trauma-informed practice in their work with victims and witnesses. The provisions are crafted in a way that empowers courts to set rules and procedures on trauma-informed practice in both criminal and civil business.

How trauma-informed practice is defined is informed by the trauma-informed knowledge and skills framework for the justice sector, although, as with any legal definition, that has to fit in with legislation. Some definitions, such as those used in the Victims, Witnesses, and Justice Reform (Scotland) Bill, are dependent on previous legislation. As with any legislation, we are not starting from scratch.

To follow up that point, if the bill is passed and we have a whole-system embedding of trauma-informed practice, will some provision be put in place to support and embed the implementation of a whole-system approach? What early work might be required around that?

10:45  

We have started that early work. Colleagues will remember the debate that we held in the Parliament before the summer recess, in which we shone a light on the publication of the knowledge and skills framework. Members who took part in that debate—I am thinking of Ms McNeill, in particular—commented on the fact that that is a substantive document, which runs to about 250 pages. There is the toolkit and, as I am sure that the committee knows from the evidence that it has heard, many of our stakeholders and agencies are already running with that work.

That work does not depend on legislation. Legislation gives a permanency to change and cements change into the system. It imposes a duty on players in the system to demonstrate that they are meeting the trauma-informed objectives and are adopting that way of working.

Thank you. Sharon Dowey is next.

I was looking at the definition of trauma-informed practice. We have heard in evidence that many of the criminal justice agencies have started to bring in trauma-informed practice without legislation being in place. When we heard from NHS Education for Scotland, it suggested that there would be benefits in extending the definition. What are your thoughts on that? If we do not get the definition right, will we run the risk of organisations only working up to the letter of the law and not going above and beyond that to keep finding new ways to improve?

We will always have an open mind and an open door when it comes to engagement on the detail. The only caveat is that it is important that legislation brings clarity of meaning and purpose, and it is important that changing the letter of the law does not have any unintended consequences.

As I intimated to the convener, the legal definition is closely aligned with the knowledge and skills framework and all the work that NES and Dr Caroline Bruce have undertaken. The definition in the bill is not exactly the same, word for word, as the definition in the framework because the bill does not exist in isolation from other legislation. The bill is adding trauma-informed practice to the list of principles in the 2014 act.

I come back to the issue of costs. Some of the justice agencies, including the police and the prosecution service, have raised concerns about limited resources. What conversations have you had with those agencies about resources? Once the legislation is implemented, is there a risk that compliance with it will have unintended consequences? You mentioned unintended consequences earlier. Is there a risk that the focus on the legislation will have unintended consequences, given that the money and the resources will have to come from other areas?

I assure members that we have lots of discussions about resources with our partners on an on-going basis.

I think that the costs for parts 1, 2 and 3 of the bill are pretty well defined and clear. I am conscious that organisations such as the Scottish Courts and Tribunals Service are smaller from the point of view of overall budget and size of operation than the likes of Police Scotland, and that we must give some cognisance to smaller organisations.

However, it is appropriate for me to test any supplementary evidence from stakeholders about costs. It is important to remember that not all of what the bill seeks to do is about additional resource, although I do not demur from the reality that there is a cost to the bill.

Some of this is not about additional duties but about changing what we do at the core. I argue that, if we get it right and embed trauma-informed practice, that will support and encourage a more efficient justice system. It will particularly affect how we schedule, in that the implementation of trauma-informed practice is a clarion call to organise the system to reduce delays. It is all interrelated. Some of this is about approach, culture and practice, as well as being about resources.

I agree with that, but putting it into practice will have an initial cost. We have your letter that came to the committee last night, and all through that letter there is reference to financial constraints. Those are why a lot of previous legislation has not been implemented. I would be concerned that, because of the costs of implementing the bill, there could be unintended consequences from other things getting left on the side, and we could end up inadvertently causing more trauma to victims.

I have a final question, on the Parole Board for Scotland. The Parole Board said that it was not confident that the bill would change the traumatic experience of victims going through the Parole Board process. Do you have any plans to make more specific provisions relating to the Parole Board in the bill in order to change that?

The Parole Board is a legal entity and has an interface with victims and witnesses. Therefore, like other criminal justice agencies, it will have to demonstrate its compliance with trauma-informed practice as per the provisions in the bill.

The other aspect of policy is the review of the victim notification scheme, which has a particular relevance to the work of the Parole Board. A review of it was undertaken, and that work was published in May, with around 22 recommendations. We are working through them, and I hope that we will be in a position to inform the Parliament of our response to that independent inquiry. Some of the recommendations are of particular relevance to the Parole Board.

Following on from your comments about changing practice and culture when it comes to trauma-informed practice, I want to ask you about floating trials in solemn cases. We have heard from witnesses and some women’s organisations that floating trials prolong the trauma and anxiety of rape complainers. The Scottish Courts and Tribunals Service has defended their use, and there is nothing in the bill to address the issue.

What are your thoughts on floating trial diets? Can you understand the anxiety that it is claimed they cause victims?

I acknowledge that there is a debate around that. In many ways, it is a live debate between different stakeholders and voices in the legal establishment. I certainly acknowledge that uncertainty for victims is undesirable.

The Government’s position is that we are supportive of reducing the use of floating trials. We have not introduced any measures to ban their use; in essence, that is because we are still tackling a court backlog.

Although the court recovery programme is making good progress and has reduced the backlog by a third, and there is a timetable of activity to move matters forward, the concern is that removing floating trials at this time could increase delays further and induce further distress.

We have taken a more flexible approach whereby courts would be required to consider trauma-informed practice when scheduling their business. However, we are supportive of a shift in culture.

Would the ultimate aim be, when the time is right, not to have floating trial diets at all?

I certainly want their use to be reduced. I acknowledge that it is a matter of live debate just now, and that I need to be cognisant of a range of voices. I know that, for victims, uncertainty is a factor that causes real distress. I am being somewhat cautious because I think that, at this point in time, if we took a more inflexible approach, that would cause further harm and distress, and I therefore think that a more flexible approach is the appropriate response.

In its written evidence to the committee, NHS Education for Scotland says that the bill’s definition of trauma-informed practice should align with its five-point definition, which was published this year. However, the bill does not include two of those five points. NHS Education for Scotland says that it is “essential” that they be included and that leaving them out

“may also hinder the effective implementation of other elements of the Bill.”

It wants the Scottish Government to reconsider the issue. Will you?

Our door is always open, particularly at stage 1. The purpose of stage 1 is to allow people to provide evidence, which is of benefit to MSPs and the Government.

I refer Mr Findlay to what I said earlier, which is that the definition aligns closely with the trauma-informed practice framework. It also adds to the existing list of principles that are contained in an earlier bit of legislation. However, if Mr Findlay or others want to be specific about what they think is missing, we can go and check the position.

I am putting to you what has been said in the written evidence, which, obviously, is available to the Government.

John Watt of the Parole Board has told us that we need

“a complete review of the system from the ground right up”—[Official Report, Criminal Justice Committee, 1 November 2023; c 29.]

and Chief Superintendent Derek Frew of Police Scotland told us that the trauma that is experienced by victims and their families through their experience of the justice system

“will not be fixed by what is in the bill”

because the bill will not

“solve the systemic issues.”—[Official Report, Criminal Justice Committee, 1 November 2023; c 35.]

Given the evidence of Mr Watt and Chief Superintendent Frew, would a ground-up review not have been a much more sensible starting point than this costly and cumbersome legislation?

With respect, I point to Lady Dorrian’s review of the management of sexual offence cases, from which the bill is largely developed. That took a clean-sheet approach and it was a substantive piece of work that took place over two years.

It is always fair to acknowledge that no bit of legislation is ever the silver bullet but, although it does not come without its financial costs, this is a substantial piece of legislation that will make historic changes that will benefit victims and witnesses and, crucially, improve the experience that victims and witnesses have of our current court procedures in particular.

11:00  

Does it not cause you some concern that a senior Police Scotland officer has told the committee that the problems will not be fixed by the bill?

I have read John Watt’s comments—

I was talking about Mr Frew’s comments.

I was about to mention Chief Superintendent Derek Frew’s comments, Mr Findlay.

Sorry.

The chief superintendent was talking about a local policing context and working with community planning partnerships, and he was reflecting on matters at a level beyond the bill; I am not sure that he was giving a direct comment that was specifically about the bill. However, members who were present at the time will have their own views on that.

Having looked at the Official Report, Mr Findlay, and at your lengthy exchange with Mr Watt about the Parole Board, my understanding is that some of what he said was quite specific to how the Parole Board engages with victims or those who are registered under the victim notification scheme.

That brings us back to one of the questions that someone else asked about the Parole Board not being part of the bill’s remit, which you have already answered.

I have already answered that, and the Parole Board is part of the remit; the Parole Board, as a legal entity, is a listed agency.

When you were here seven weeks ago, I asked about the requirement for judges to be trauma-informed, but the bill says that it will be up to the Lord President to decide exactly what that will look like. If the bill is going to great time and effort to implement trauma-informed practice throughout the justice system, should it not be more specific about the judges? In the light of that point, which was raised seven weeks ago, is that provision being revisited, or are you happy with the bill as it is?

I will ask officials to speak on that point, but in part 5 of the bill there is an obligation on all the actors and players in the sexual offences court to be trauma informed. We will discuss that part of the bill later. There is also a desire and a commitment for the judiciary to be trauma informed.

My question is specifically on the fact that the bill says that, once it is enacted, the judiciary will decide what trauma informed looks like. Should the bill not state what that looks like up front?

To add to what the cabinet secretary said, the committee heard last week from David Fraser and from Dr Caroline Bruce about the considerable training on trauma-informed practice that has already been developed and delivered by the judicial office that leads on training for the judiciary, and about the high quality of that training. It was perhaps the first organisation, or one of the first organisations, that Dr Caroline Bruce worked with quite extensively on the development of its own training. It has already put considerable resource and time into developing that. As the cabinet secretary said, in part 5 of the bill there is a requirement that the judiciary in the specialist court, like the other players in that court, will have undergone trauma-informed training.

Is that training provided by the Judicial Institute for Scotland?

Yes, the Judicial Institute for Scotland leads on the development and delivery of all training for the judiciary.

Okay. Thank you for that.

We have covered quite a lot about trauma-informed practice already, so my question is quite general and touches on something that the cabinet secretary has already raised.

Clearly, we have heard evidence that a lot of good trauma-informed practice is already happening in the justice system, albeit that it perhaps happens in patches throughout different organisations. I think that everybody recognises—we have heard this from various people who have told us about their experiences—that the justice system often retraumatises victims. Is it the purpose of this part of the bill, which brings trauma-informed practice into legislation, to try to drive culture change and to look at the good things that are happening and try to replicate them across services quicker than would happen without legislation?

In short, yes. There has been a series of reports, dating back to about 2017, including a thematic review of investigation and prosecution services, a close look at justice journeys and a review of victim care that was undertaken by Lesley Thomson KC, as well as other work. Then we have Lady Dorrian’s work, in which she said that trauma-informed practice is a central way in which the experience of complainers can be improved. I believe that the bill will help to bring forward that system-wide change.

As I said in my opening statement, we can never remove risk entirely, because people will have to recount very difficult traumatic experiences, in some shape or form, as part of their going through the justice system. However, where we can, we will seek to reduce the risk of retraumatisation and ensure that people can continue to be engaged with the justice system and not fall out of the process by supporting them appropriately to give their best evidence. That is not compromising anybody else’s rights, but it is in the interests of justice that complainers and witnesses can give the best of evidence. At the end of the day, we all just want to get to the truth in any individual case.

A cornerstone of our justice system is fairness, and it has to be run in a way that does not disregard the welfare of people who participate in it.

You have partially covered the question that I was going to ask, but just for the record, you said that there will be a certain element of risk and that the important thing is that we have a system that lets victims tell their stories and that, when they are in court, they can fully voice what happened to them. However, there is a fine line between that and cross-examination. Whatever you think of the system that we have, it is the system that we have and you are not proposing to change its adversarial nature. Have you had any discussions with the profession? Have any concerns been raised with the Government during the passage of the bill about the balance between trauma-informed practice and the process of cross-examination in court?

Yes. Again, there have been lots of discussions with lots of stakeholders and people who operate in the courts on a daily basis. As you would expect, I have engaged with the Faculty of Advocates, criminal defence lawyers and victim support organisations. The purpose of Lady Dorrian’s review was to look at how we could improve the experience of victims who are going through the justice system without compromising the rights of the accused. There is always a balance to be struck there.

I will not repeat what I said about the series of reports that make up a body of evidence about the system as a whole. We have had lots of powerful personal testimony about the emotional toll of being a complainer or a victim, as I am sure that the committee has.

There are criminal defence lawyers who have been absolute champions of the trauma-informed approach. I am thinking particularly of Iain Smith, with whom I had dealings when I was Minister for Drugs Policy.

Our system ultimately needs to be fair to everybody, and we need to have that balance.

My final question before we move on to part 3 of the bill is on the role of the Scottish Prison Service with regard to trauma-informed practice. The committee has heard evidence relating to the treatment of prisoners in a trauma-informed way. However, I am interested in how the cabinet secretary envisages the provisions in part 2 of the bill further impacting the role of the Scottish Prison Service with particular reference to victims and witnesses—for example, in and around the victim notification scheme.

The bill requires the Scottish Prison Service to comply with the new principles on trauma-informed practice in its work with victims and witnesses. The SPS mainly interacts with victims through the victim notification scheme, which has been subject to a full, independent review. The Minister for Victims and Community Safety and I will come forward with our conclusions and our response to that review either by the end of the year or at the turn of the year. That review focused on communication with victims and how there could be a more person-centred approach, as well as people’s rights to engage with particular processes.

Other work that is relevant in that regard includes a workstream under the victims task force on communication, specifically written communication. That is important for organisations including the Crown Office and the Scottish Prison Service because we will all have heard testimony about the nature of written communications which, at times, can be somewhat impenetrable. More broadly, the Scottish Prison Service is involved with the “people at heart” approach to communication. Although the trauma-informed approach for prisoners is not in the bill, which is about victims and witnesses, it is part of the SPS corporate plan.

We will move to part 3 of the bill, which is about the proposal to extend special measures to vulnerable witnesses in civil cases.

We received evidence from Scottish Women’s Aid, Rape Crisis Scotland and Victim Support Scotland arguing that the categories of witnesses who are deemed to be vulnerable should be broadened beyond what is in the bill and that special measures should be available automatically for those witnesses. Will the cabinet secretary consider amending part 3 of the bill in recognition of that evidence?

I will always work with members and stakeholders to discuss their concerns. I am always in the business, I hope, of demonstrating that we will look at the art of the possible. That is quite a difficult area—and I say that for reasons of transparency.

Part 3 of the bill is about improving access to special measures. We have heard over a number of years that people in the civil courts have felt far less protected, particularly in and around where domestic violence or abuse is a feature of the case.

11:15  

Our approach thus far has been that where civil protection orders are in place—an interdict or a non-harassment order—or where there are convictions or, indeed, live proceedings, those will trigger the special measures automatically. The court would have discretion in other circumstances. I am always happy to discuss and consider further. I am also aware of evidence that the committee got from the Family Law Association that expressed some caution.

Do any other members want to come in on part 3? I will bring in Russell Findlay.

When you were here in September, cabinet secretary, I raised the issue of what some victims groups have described as “legal system abuse”. An example of that is when a domestic abuser uses connected civil and criminal cases to cause a further unnecessary delay. It was suggested that a single sheriff could deal with civil and criminal cases in tandem to help tackle that.

You said at the time that you saw the logic of that, that the Scottish Government would “take an interest” and that you would consider working on a possible way of amending the bill. It has only been seven weeks since then, but have you or your officials had any opportunity to explore that any further?

I remember our exchange well, and I can indeed see the attraction or potential benefits of such an approach, bearing in mind that one of the core concerns is the lack of information and the lack of connectivity if different courts have different information and different procedures going on.

I have certainly discussed the issue further with officials. It would be a major and substantive piece of work—I am just being up front and direct about that. That does not mean that there is no merit in exploring it, but it might limit what could be achieved via an amendment. If you are talking about integrating courts in certain circumstances, that would certainly require full consultation with stakeholders and, indeed, with the Lord President, given his unique duties and responsibilities.

We are planning some workshops to look at the issue more fully. There is not the fullest of evidence. There is some evidence on this from the States, but there is not a wide range of evidence. We will continue to look at the issue with our stakeholders in the workshops, which will take place next year.

We would also have the desire to look at the issue in and around court rules. I know that more recent changes to court rules have focused on doing more to get the right information to support earlier action, particularly in family cases. Measures around initial and full case management hearings have been introduced. If there is further information, I would be happy to provide that to you separately.

To recap, the workshops that you mentioned are not specific to this legislation.

They are not specific to the legislation, but they are specific to the issue of integrated domestic abuse courts.

Right.

I think that Scottish Women’s Aid told us that there had not been any meaningful research in Scotland on this issue. There is research from elsewhere in the UK.

I noticed that you said that this would be a major piece of work, but I guess that the legislation is already a major piece of work, not least with regard to the controversial intent to have judge-only rape trials. Given that the issue would need to be consulted on, does that make any proposed amendment unrealistic at this stage? Is it too late?

I am keen to manage expectations, Mr Findlay, bearing in mind some of the discussion that we have had about cost and the need to be in a position to implement legislation. What I do not want is for amendments to be agreed and then, once we have royal assent, for us to be left sitting with the issues of how to implement some of this in practice. It is about not putting the cart before the horse.

As a member of the Parliament, I am trying to understand the process, because you might lodge an amendment with good intent but, if the necessary work has not been done to assess the costs, it can potentially create more problems.

Yes. I would be a bit nervous about an amendment on something so substantive, but that does not mean that there is not merit in pursuing that work further.

With the full weight of the Government behind it, we could get it done.

We have a lot more work to do. You are a chancer.

Thank you. That is the nicest thing you have ever said to me. [Laughter.]

We have a long journey to go on together, Mr Findlay. We will be pals by the end of it.

I do not doubt it. Thank you.

I thought that you were going to say something else then.

Three years on, the special measures in the 2020 act are not yet in force. When does the Scottish Government aim to have part 3 of the bill fully operational?

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.

Thank you. You have actually answered one of my other questions—I was going to ask whether you are concerned that there is not a sufficient number of solicitors who are willing to be included on the register. You seem to be doing work to recruit solicitors, so that answers that question.

I go back to the cost. You referred to the letter that you sent to the committee last night, which says that

“there are budgetary pressures in relation to implementing the Act in full”

amounting to

“£15 million a year.”

It goes on to say:

“The Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 ... has not yet been implemented beyond Phase 1”.

Again, in relation to implementation of aspects of the Domestic Abuse (Protection) (Scotland) Act 2021, the letter states that those

“all have associated resource implications.”

It also says that implementation was affected

“due to resourcing and other priorities following the Programme for Government”.

I wonder, therefore, whether we should look at some of the legislation that has not yet been fully implemented, rather than trying to batter on by bringing in even more legislation that will not be implemented unless we get the proper funding for it. The implementation of that previous legislation would have a huge impact on some of the trauma that victims and witnesses face.

As the letter notes, one aspect of the Domestic Abuse (Protection) (Scotland) Act 2021 was about allowing victims

“to remain in the family home”

by

“enabling a social landlord to transfer a tenancy to a victim/survivor”.

Again, ensuring that we have implemented some of the previous legislation would go a huge way towards making sure that we reduce trauma. Should we perhaps stop and look at some of the previous legislation, and put the funding in to get it implemented? As you have said, there is a will within the judiciary to undertake trauma-informed practice.

We are riding two horses at once—

Maybe more.

That is sometimes just the way that life needs to be. We are taking this bill through Parliament in tandem with the work to implement previous legislation.

On some of the specifics, the bill before us expands the powers of the Children (Scotland) Act 2020. There is a good synergy between the 2020 act and this bill, in that we are essentially increasing the safeguards for vulnerable parties. Section 11 of the 2020 act contains special measures that are focused on family cases involving custody and disputes about contact. In this bill, we are taking the nub of that element and expanding it to cover civil procedures more widely. That is to be welcomed—it is what victims have been calling for.

Nonetheless, I would say that progress has been made with the 2020 act. There are other aspects of that act that do not relate directly to this bill—in and around child contact centres, for example. Ministers have had detailed discussions with the Care Inspectorate on that and hope to be in a position to lay Scottish statutory instruments soon. There is progress on that.

The bit of the 2020 act that is relevant to the bill that is before us is a good example of where we have undertaken a bit of movement in protecting people in civil proceedings and expanded that further, and we will make more progress in that respect.

The Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 relates to the introduction of pre-recorded evidence in court, and we have made progress in that regard in the High Court. That work is phased and on-going. In later sessions, we will discuss part 5 of this bill, on the establishment of a sexual offences court, and there will be a presumption that pre-recorded evidence will be used in that court.

11:30  

The Domestic Abuse (Protection) (Scotland) Act 2021 is an example of legislation for which there are practical issues relating to implementation. That is why I gave a note of caution in our discussion about amendments. Not all the issues with the 2021 act relate to finances. Some relate to how timescales that are set in legislation have an impact on the operational justice agencies, and there are some challenges in how the views of children can be gathered in ways that do not cause them additional harm or trauma. This is in no way an excuse, but our experiences in implementing the 2021 act are not dissimilar to some of the difficulties that have been experienced south of the border.

Legislation can be complex, and its implementation is sometimes more complex than anticipated. However, I assure the committee that I will seek to mitigate such issues as far as possible as we go through the bill process.

For the record, I clarify that we received the letter that you sent earlier this week, which provides an update on previously passed legislation, including the Children (Scotland) Act 2020, the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 and the Domestic Abuse (Protection) (Scotland) Act 2021. That correspondence is now available online.

With that, I draw the session to a close. I thank the cabinet secretary and her officials for joining us.

There will be a short suspension to allow a changeover of witnesses.

11:32 Meeting suspended.  

11:38 On resuming—