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Citizen Participation and Public Petitions Committee

Meeting date: Wednesday, November 9, 2022

Agenda: Interests, Continued Petitions, New Petitions


Contents


Continued Petitions


Unborn Victims of Violence (PE1887)

The Convener

Agenda item 2 is consideration of continued petitions. PE1887, on the creation of an unborn victims of violence act, was submitted by Nicola Murray, from whom we took evidence when we last considered the petition. Originally, we hoped to convene this further evidence-taking session at our first meeting after the summer recess, but it proved too difficult to get everybody together at the appropriate time. It is a little bit later than scheduled, but we are now able to consider the petition again.

The petition urges the Scottish Government to introduce an unborn victims of violence act, which would create a specific offence to enable courts to hand down longer sentences for perpetrators of domestic violence that causes miscarriage.

We are joined this morning by Dr Mary Neal from the University of Strathclyde, Steven Tidy from Victim Support Scotland and Dr Marsha Scott from Scottish Women’s Aid. I thank you all for coming to speak to us today. Members have a number of issues that they would like to explore so, if you are quite happy, we will move to the first question. Please indicate when you wish to speak and I will come to you in turn.

We had a really compelling evidence-taking session with the petitioner. There is quite a bit of evidence that we still need to take but, as a general introductory question, will our three guests give us their views on the evidence on the level and impact of domestic abuse during pregnancy? Would anyone like to indicate their general feelings on that matter?

Dr Marsha Scott (Scottish Women’s Aid)

It is not much of a secret that women who already experience domestic abuse are at much greater risk when they are pregnant, although it is not clear whether that is just because they are more engaged with services that will monitor and track the injuries and abuse that they are experiencing. However, there is no question but that, according to the data, women who are pregnant and who are living with an abusive partner or have an abusive ex-partner are at really high risk of injury and significant abuse.

It is very difficult to get your head around why that would be okay. Indeed, why domestic abuse is seen as okay is a big question for all of us. I really support the national health service’s efforts to try to identify such abuse, but I think that it is part and parcel of what happens when somebody with a high need for control is involved with somebody who is pregnant.

The Convener

These issues will come out in response to questions from my colleagues, but—I am thinking back to our evidence-taking session with the petitioner—what is your experience of the degree to which this sort of violence goes unreported because victims of such violence, given the situation in which they find themselves, find it difficult to come forward and discuss it?

Dr Scott

It is really important that we take all the data on prevalence with a very big grain of salt—I think that I have just mixed my metaphors there. One in 12 women who responded to the Scottish crime and justice survey said that they had reported such abuse to the police or health service, which suggests that the amount of abuse that goes unreported is a mountain compared with the rather large number of police calls—60,000 a year—that we have on domestic abuse.

The barriers to disclosure are massive for women. The fact that routine inquiries are now made by maternity services is a good step forward, but we do not have guarantees for a woman who makes a disclosure that the criminal justice system will respond swiftly and robustly enough to keep her safe. Moreover, if she is financially dependent on the abuser—which is more often the case than not, especially if she is pregnant and mothering—are there arrangements in place so that she can put food on the table and take care of herself and her unborn baby? Those are just some of the issues that we could dive into.

I think that there is an elephant in the room with regard to the legislation that is proposed in the petition, and it is the heartbreaking story of the failure of our system to respond appropriately to perpetrators.

Steven Tidy (Victim Support Scotland)

I support Marsha Scott’s comments. We certainly support lots of people who have found themselves subject to domestic abuse, which is even now, despite all the domestic abuse legislation that we have had in recent years, still an underreported issue. The Crown Office and Procurator Fiscal Service’s submission is interesting on the very small number of people who have been charged with an offence related to the assault of a pregnant woman, but the real picture is very much an unknown.

Dr Mary Neal (University of Strathclyde)

I endorse what the other witnesses have said. The only thing that I would add to what Marsha Scott said is that, as well as people who are already in abusive relationships experiencing an intensification of that abuse during pregnancy, there is literature that suggests that relationships that were not previously abusive can become so during a pregnancy. It is a very vulnerable time.

I wonder whether I can tease that point out a little more. Are you saying that pregnancy leads to a greater incidence of domestic abuse? What are the circumstances in which that would be promoted?

Dr Neal

That is not necessarily clear, but evidence from studies shows not only that abuse that is already present intensifies during pregnancy, but that pregnancy can act as a trigger for abuse to begin.

Pregnancy can lead to abuse being introduced into what had been a relationship without abuse.

Dr Neal

That seems to have happened in some cases.

Thank you for your responses to that general opening question.

Fergus Ewing (Inverness and Nairn) (SNP)

Good morning and thank you for your evidence thus far. I absolutely understand that this is a huge area of concern, but the particular aspect that Nicola Murray has asked us to consider is the proposal for an unborn victim of violence act. That is her focus, and in the evidence that she gave to the committee in June, she gave a very articulate, moving and harrowing account of her own experience of losing children. She told the committee:

“I lost a child—I lost children—my children lost siblings and my parents lost grandchildren”—[Official Report, Citizen Participation and Public Petitions Committee, 29 June 2022; c 2.]

The assailant was charged and was convicted thereafter of a lesser offence and fined £300, which is something that will obviously rankle, probably for ever.

With that background in mind, I want to ask a few specific questions about the petition, given that that is what we have been asked to do, instead of considering the hugely important wider issues that the witnesses have quite rightly talked about.

First, should a new offence be created, or should we simply adapt the existing statutory or common-law offence to libel, if you like, that an act of violence has led, through causation, to the death of an unborn child? I guess that that is a legal question, so I am not sure whether all the witnesses will be able to answer it. It might be that we need to ask it of the Crown Office and the Scottish Sentencing Council. However, what are the witnesses’ views on that? Should there be a specific new act or an offence of causing violence to an unborn child, leading—I imagine in most cases—to the death of that unborn child, or can we use the existing weaponry of offences in statutory or common law?

09:15  

Dr Mary Neal (University of Strathclyde)

There is a lot to unpack there. First, I am strongly of the opinion that there needs to be a new offence. I would not frame it in the terms of the petition—I would not call it an unborn victims of violence act and I would not frame it in a way that might suggest that the victim is the fetus. I am happy to come back to that. However, there needs to be an offence. The law as it stands in the Domestic Abuse (Scotland) Act 2018 and the common law that could be applicable is wholly ill-equipped to deal with that.

Attaching provisions to existing law in order to deal with the issue would look like—and would be tantamount to—doing nothing. It would leave things as they are and it would leave Scotland as an outlier in the UK. Every other jurisdiction in the UK has an offence of this nature. I would not support using the existing offence in the rest of the UK as a template for what we should do in Scotland. We can do a lot better. However, we are an outlier at the moment, and not in a good way.

Fergus Ewing

I want to probe that further. I can understand that an entirely new act would create clarity and certainty and draw attention to the matter, which I think you are arguing would be good things. Why have you formed that view about the alternative of using the existing measures given the flexibility that is inherent in Scots law, and particularly the ability to libel different types of charges such as assault, culpable homicide or even murder?

The existing common-law offences are flexible and, as I understand it—although my practice as a criminal lawyer is now a distant memory—that flexibility can be used by the Crown Office and Procurator Fiscal Service to libel different circumstances in the charge. It is a matter of will, practice and the determination of the authorities to follow that through and take it seriously. Surely that is the issue, rather than the inadequacy of the legal framework, which could be used to adapt the existing charges.

Dr Neal

I begin by saying that there should not be a completely new act. I favour the approach of amending the Domestic Abuse (Scotland) Act 2018, and I have favoured that approach since that act was a bill. At that time, I proposed that a new offence be created as part of the bill. That is the framework within which a new offence belongs.

There are numerous reasons why using the existing law would not be the right approach. An important reason is that, if we try to use existing law and attempt to punish that kind of harm or loss via other charges, it becomes almost secondary or an afterthought. That harm or loss would not be the primary focus of that law.

In the past, I have called it a serious and distinctive loss; it is a unique loss that can be experienced only by somebody who is pregnant. For the victim who experiences that kind of harm or loss, the tacking on of that offence to other charges about the attack on the body of the victim would not do it justice. I reiterate that that seems tantamount to doing nothing: it is the status quo.

There is a huge problem about the will to use the law that we have. I am probably not the best person to speak to about that. Somebody who represents victims would be better placed to speak to it. However, there are two separate problems—there is a problem with what the law does and how the law does not acknowledge and address that kind of harm and loss, and there is the separate problem of a lack of will. We need to address both things.

Although I am adamant that we need a new offence, we need to be careful that we do not let that offence act as a gloss or a mask that distracts us from the other work that needs to be done.

That is very helpful. Do the other witnesses have comments?

Dr Scott

I agree with some of what has been said, but not all of it. We have the world’s “gold standard” domestic abuse law, according to Evan Stark, but it is far from being implemented completely and appropriately. In a meeting that I was in yesterday, Jen Wallace from the Carnegie UK Trust said that Scotland has an implementation disorder. A lot of other countries have that, too, but we need to pay close attention to what is and is not happening in the implementation of the domestic abuse law.

One of the most significant features of the law that made it so innovative is that the crime is based on the behaviours of the accused rather than on the harm to the victim. We were very much in favour of that, in part because of who is at fault, and also because women and children have been telling us for decades that the process of testifying in court is often as traumatising as the abuse that they experienced. They say that, if they were calm and in control, they were seen as clearly lying and that, if they were upset and hysterical, they were not seen as reliable witnesses. There was a sense that the severity or unacceptability of the behaviour and the abuse all rested on the impact on the victim.

To come back to your question, I think that the law has the tools that we need, and that the difficulty is with the rest of the system. I would say that the loss or murder of children in domestic abuse cases is a distinct kind of loss and harm alongside a myriad of others that women experience because they are women. We need to fashion a system that responds appropriately to that. I know that this is not answering your question—although I suspect that this issue will come up, and I am happy to address it then—but, if we frame an offence in the way that has been suggested, there is potential for massive unintended negative consequences for women who are experiencing domestic abuse.

Steven Tidy

The law needs to reflect the harm that has been caused to the victim of crime. It was clear from the petitioner’s evidence that the law at the time did not reflect the harm, in terms of the sentence that was given. The law needs to accurately reflect the harm that is caused, be that through sentencing or through the charges adequately reflecting the loss of the child. There is a combination of lots of different things that the system should do for victims of crime that it might not be doing at the moment, or that it did not do in the petitioner’s case.

Fergus Ewing

Thank you for those responses. I will ask a related question. In Nicola Murray’s case and, I suspect, in other cases, the original charge that was libelled was reduced, and she was not aware of or consulted on that. The Crown Office and Procurator Fiscal Service is rightly independent of politicians and so on, and it cherishes that independence, but do the witnesses consider that, in the particular circumstances that we are talking about, there should be a duty, whether it is created by law or practice, on a fiscal or lawyer handling a particular prosecution to consult the victim prior to the decision being taken to reduce a charge?

In the case of Nicola Murray, the reduced charge led to a monetary penalty of £300. We, of course, have to be careful not to make judgments about the case, because we were not there and did not hear all the evidence, whereas the judge heard all the evidence, so I do not mean to make any value judgment and I cannot do so, because I am not in a position to do so.

As a matter of principle, however, do the witnesses consider, given the gravity of the consequences that Dr Neal rightly described, that there should at least be a consultation? At the end of the day, the decision-making power probably has to rest with the prosecution authorities, but should there at least be a form of consultation required prior to the acceptance of a reduced charge by the fiscal or the Crown Office?

Dr Scott

What you say raises two issues regarding the downgrading of charges and the engagement with the complainant.

With regard to the downgrading of charges and the example of the £300 fine, we hear such shocking stories all the time. They reflect a system that starts with a failure to collect the evidence that the Crown Office needs to prosecute on the charges that have been made. There is then pressure on the Crown Office to prosecute, and in a speedy fashion in order to get cases through—I am sure that members will be well aware of the backlog of 40,000 cases as a result of Covid. There is also pressure on the system, because of the prison population, not to administer a custodial sentence, which is a whole other discussion.

From a Scottish Women’s Aid perspective, there is no way of fixing the trajectory simply by talking more to the complainer—we have to take a look at the whole process that influences the Crown Office. In the grand scheme of things, the Crown Office does not want lesser charges; it looks better when it gets convictions for more significant charges. We need to look at the whole process from the beginning, from disclosure and the collection of evidence to reporting to the Crown Office. Those are the issues.

I totally agree on the failure to speak to the complainer. That has been addressed by the victims task force, on which I sit, along with Victim Support Scotland. We have talked about the failure of communication with witnesses. A pilot in the Hamilton area—Steven Tidy will probably know more about it than I do—is looking at changing the way in which cases are processed to make sure that the fiscal who is involved communicates with the complainer. We have heard of so many cases in which the complainer, if she is lucky, meets the fiscal on the day of the trial.

That is very helpful.

Dr Neal

Intuitively, I feel, having read the petitioner’s evidence, that she clearly experienced what happened as further trauma. Every opportunity to avoid further trauma to a victim should be taken. I agree whole-heartedly with what Fergus Ewing said: the decision on the charges ultimately needs to rest with officials. That does not mean, however, that there cannot be communication with, or forewarning of, the victim in such a case. I do not want to dwell on this matter; I simply endorse what Marsha Scott said about it and what Fergus Ewing said about where the decision-making power needs to rest. We can allow it to rest there while still being compassionate to the victim and avoiding retraumatising her.

Steven Tidy

There is currently a problem with the way in which witnesses and victims are dealt with in the court system, with regard to the number of times that a case is adjourned. Witnesses and victims prepare themselves to go to court, and then the case is adjourned, for various reasons, at very short notice. They turn up at court and are told to go away, perhaps after sitting there for a couple of hours. Communication with victims and witnesses needs to be a lot better. If individual charges are being lowered, that certainly needs to be communicated in a trauma-informed way to the victim of a crime, who needs to be given a full explanation and rationale as to why a charge that they expected to be heard has been lowered.

Perhaps we need to pursue those points with others, namely the Crown Office and the Scottish Sentencing Council, but that will be for a later date.

The Convener

I want to follow up on one point with Dr Neal. You referred—as did Nicola Murray in her evidence—to the fact that Scotland stands alone in this regard, and that there is a far higher level of protection in law, or at least an offence that can be pursued in law, elsewhere in the United Kingdom. What impact has that had on the way in which such matters are pursued or on their incidence elsewhere in the UK? Let us establish and agree that such matters sit apart and that there is a separate offence that can, therefore, be pursued in that way. What has been the impact of that legislation in those jurisdictions?

09:30  

Dr Neal

We are talking about fairly old legislation, both in England and Wales and in Northern Ireland. In England and Wales, the issue is governed by the Infant Life (Preservation) Act 1929, which was originally enacted for a different purpose. That purpose is now purely of historical interest and, in recent decades, the 1929 act has been used solely to punish violent men who cause the loss of a pregnancy through their violence in the pregnancy’s late stages. In Northern Ireland, the relevant legislation is the Criminal Justice Act (Northern Ireland) 1945, which really just transplants the English and Welsh crime into Northern Ireland.

Those are old laws but, in recent decades, there has been an alarming increase in the number of convictions for child destruction, which is the name of the crime in the rest of the UK, and we know that the same kind of behaviour happens in Scotland.

In the UK jurisdictions where the crime of child destruction exists, that is liable alongside charges such as assault, attempted murder and grievous bodily harm. In Scotland, only the charges relating to the offence on the person of the victim can be used; there is no additional charge.

In England and Wales, there is a charge over and above assault or attempted murder. There have been recent cases in Scotland with really shocking facts, in which somebody could have been charged with the additional crime that I have proposed but for the fact that we do not have that crime here.

Have charges led to successful convictions in Northern Ireland and England under the specific provisions of those acts?

Dr Neal

Yes. People have been charged with and convicted of child destruction for committing the kind of behaviour that we are concerned with here.

This is a general question, but would you say that that has led to a different kind of sentencing?

Dr Neal

Well, yes. The person is sentenced for that crime as well as whatever else they are convicted of, so it obviously adds to the person’s sentence. Sentences can run concurrently, so it is sometimes purely expressive, but the law does have an important expressive purpose. The law in the rest of the UK expresses its strong disapproval of such behaviour through the existence of a separate crime. In Scotland, we are not doing that, and I think that we ought to be.

I am sorry—I do not mean to quantify it in this way—but I am interested in whether the practice in England and Wales comes down to a compensation order in the same way that we have here.

Dr Neal

The crime of child destruction in England and Wales carries a maximum sentence of 14 years in prison, and the sentence in Northern Ireland is life in prison.

That is very helpful.

Dr Scott

Can I just add a couple of things? This relates to what I was saying about the potential completely unintended but negative consequences here. I had a conversation with my counterpart in the Women’s Aid Federation of England to discuss the issues, and she talked about there being a number of women who were victims but who had been prosecuted for child destruction.

We know that our system is far from being calibrated appropriately so that women who are victims do not get arrested—unfortunately, they still do. Can you imagine what, if you were pregnant, would have a more chilling impact on the possibility of disclosing domestic abuse than knowing that you might be accused of, at best, failure to protect the fetus? I think that we need to be very cautious about that; in particular, we need to look at what is happening in the United States around some of these laws.

It is also worth pointing out that our Domestic Abuse (Scotland) Act 2018 allows prosecution with sentences of up to 14 years, which is far higher than the sentences under domestic abuse laws in the rest of the UK. However, I do not think that the evidence on any such laws indicates that we have been particularly effective in reducing the level of perpetration in England, Wales, Northern Ireland or Scotland. That is what we should be looking at. We can tinker with the law as much as we want, but we should not do so without dealing with the problem. The last time that I saw the data—I think that it is slightly different now—something like 1 per cent of the total number of domestic abuse convictions resulted in a custodial sentence of more than a year.

You say that women might find themselves subject to prosecution under the provisions in England. Is that a hypothetical situation, or has that happened?

Dr Scott

It has happened.

Is there a general way in which the circumstances of those prosecutions arose?

Dr Scott

I have reached the limits of what I know.

Right. Thank you very much.

Dr Neal

I will pick up on that point. In England and Wales, there is one outstanding prosecution for child destruction, and it is a woman who has been charged with that. I am not aware of any women being convicted for child destruction in England and Wales, although they could, in theory, be charged with that. It is very important to say that, in Scotland, we can avoid the entanglement of such a crime with abortion law. In the rest of the UK, the crime of child destruction is messily entangled with abortion law, and we can completely avoid that in the design of any new law that we enact.

The wording that I proposed when I gave written evidence to the Justice Committee when it was considering the Domestic Abuse (Scotland) Bill in 2017 would have completely avoided that. It would be very easy to draft a provision that would exclude the possibility of criminalising women or their doctors. That has been done in Northern Ireland; regulations in 2020 changed the crime of child destruction there so that women and their doctors can no longer be prosecuted for it. We could easily do that here by hermetically sealing the new crime away from abortion law, thereby avoiding the possibility of criminalising women. We can and should do that.

I will bring in Alexander Stewart, who will ask about a different aspect of the petition.

Alexander Stewart (Mid Scotland and Fife) (Con)

I thank the witnesses for their evidence so far. You have touched on underreporting and said that the victim is the most important person. When Nicola Murray gave evidence, she spoke about the difficulties in reporting in relation to the co-operation that is required between the police and the individual who has been abused. She also talked about the knock-on effects. We know that Police Scotland has looked at domestic abuse and views tackling it as a priority, but she explained that more training and more support are required. She felt that the police were not able to deal with coercive behaviour as well as they should. When someone who has been abused tries to progress their case, they have to go to the first authority—the police—before there are court proceedings, and she, as a victim, identified a gap in that regard. As I said, Police Scotland has a role in managing such situations and supporting victims. As Mr Tidy knows, the victim is the most important person—we acknowledge that—but that might not always be the case when it comes to how they are managed and processed by the authorities that are there to protect and support them. It would be useful to hear the witnesses’ views on that.

Steven Tidy

I will disclose that I was a police officer for 20-odd years—I retired last year—so I am fully aware that the police do not always get it right in relation to the information and support that they provide to victims of crime. However, there are other organisations, such as Victim Support Scotland and Scottish Women’s Aid, that could fill the support gap by providing victims of crime with emotional and practical support, even if they have not reported to the police.

I know that Nicola Murray mentioned in her evidence to the committee that she felt that very limited support was available to her, but there is support. I advertise the services that are available to support victims of crime, regardless of whether they have reported to the police.

The training that Police Scotland provides is ever evolving because the law is constantly evolving. There is always new legislation coming out. For officers to keep up to date with all that legislation, it requires a lot of training, investment and time. They should provide factual information to victims and witnesses, and there are other organisations, such as Victim Support Scotland, that can provide other support. If victims feel that they have a knowledge gap, that can be filled by our services.

Dr Scott

I am not quite as kind. I have a number of things to say.

Prior to appearing before the committee, I spoke to a police officer at strategic level about what tools Police Scotland has for gathering evidence and reporting to the Crown Office the kind of experience that Nicola Murray has recounted. The response that I got was frustration at the failure of the system to use its tools appropriately. I was told that there are existing charges, such as assault leading to severe injury.

However, what is really important here is the issue of coercive control and the ability of police officers to identify that. We know that coercive and controlling behaviour is the single variable that best predicts lethality, so it is critical that, if nothing else, police officers are able to identify whether coercive and controlling behaviours are being exhibited by the potential accused.

It makes me very unpopular when I say this, but we know that the existing risk assessment that is used by first responders and the police—the DASH RIC, which is the domestic abuse, stalking and honour-based violence risk identification checklist—is, in the hands of people who do not deal with domestic abuse cases all the time, insensitive to coercive and controlling behaviours. We have a risk assessment that essentially privileges physical violence. As that is the background that most police officers come from, although we have a system that has a law that says, “You must pay attention to these things,” they often do not see those things or, if they do, because there is a hierarchy of harms, if there has been a physical assault, they are much more likely to focus on that.

I think that there is a training issue. There is also a problem with the existing risk assessment. The College of Policing has done some interesting research on how to adjust the way in which the DASH RIC is used so that it becomes more sensitive to coercive control.

The issue is also about gender. Police officers need to understand what the impact is on a woman who is being abused and is subject to coercive and controlling behaviours, who has potentially previously had a miscarriage, and who has been asked, “Why didn’t you just leave?” Why would she disclose? She did not get help the first time. There is a whole set of factors in the system that require improvement. It is critical that that starts with being able to identify coercive and controlling behaviours.

Dr Neal

I endorse that last point whole-heartedly. It is imperative that we become better at identifying coercive control. In the wording of a draft provision that I suggested in 2017, I specifically mentioned coercion as one of the things that could underpin such a charge. I, too, feel very strongly about the importance of coercion.

09:45  

I do not have a lot to add on Alexander Stewart’s question. A tangential but still important point is that we should remember that other crimes with primarily women victims are underreported, difficult to persuade people to come and give evidence about and prosecuted with varying levels of success, but we do not suggest that they should not be crimes for those reasons. Just because rape might be difficult to prosecute, or difficult to get a victim to report because it might be traumatic for a victim to do so and go through that process, we do not say that it should not be a crime, and likewise with this.

Alexander Stewart

You have all identified that the victim in the process is the person who has to go through the trauma again when they go to court. They are being abused in another way, because for them the whole situation re-emerges. How that is managed and how the person is supported is another big issue that we need to think about.

You have identified that training requires to take place, but at the same time, the focus should be on making sure that the victim gets the support that she requires from the agencies that provide such support. We are hearing that, at times, women do not have confidence in what is happening with the police. They do not have that confidence because they feel that they will have to go through the trauma again, which prevents them from dealing with the situation. They then end up staying in the relationship because they feel that they cannot get out of it or because they are bound, financially, and the coercive behaviour continues.

Dr Scott

We try really hard not to frame it as a problem with the victim, so that it is not about her lack of confidence. We know from libraries of qualitative evidence about how victims and survivors make decisions about when, where and to whom to disclose that it is a very complex calculation of risk, so if they choose not to disclose, it is very often because their assessment is that it will put them in more danger than they are in already. People think that it is a self-esteem issue, but it is not—it is about a calculation of risk.

Paul Sweeney, who is online, will ask a couple of questions.

Paul Sweeney (Glasgow) (Lab)

The panel has given very compelling evidence so far on the need for this change, particularly on the issue of fair labelling; an extremely compelling point was made on that issue. I note that Dr Neal mentioned that she had drafted a clause in 2017. In trying to reach a set of firm proposals about how to take this forward, what remedy would be satisfactory to witnesses? I know that there has been discussion about having a statutory aggravator that could be coupled with a more general offence; would that be a satisfactory remedy?

In relation to a specific offence, is there an opportunity to consider the Scottish Law Commission’s current projects? It is doing projects on homicide and aspects of family law that come close to the topic in the petition, but neither covers the issue raised. Could those projects be adjusted in scope to incorporate the issue? A members’ bill could be introduced, if there was support for its drafting. Do any witnesses have thoughts about potential options to take the matter forward in a practical sense?

Dr Neal

First, in my written evidence from 2017 that I referred to, I included a statutory aggravator alongside the proposal for a new crime. I proposed a new crime and a statutory aggravator whereby the pregnancy of a victim would aggravate the offence of domestic abuse. That was to capture situations where the pregnancy had not been lost or where it was impossible to prove causation in relation to the loss and the abuse, so that across the board, if somebody abuses somebody, the victim’s pregnancy aggravates the offence. That is my first point.

The second point concerns how to go about enacting a change. The idea of a members’ bill does not appeal to me at all, because I do not think that we need a standalone act; all we need to do is amend the Domestic Abuse (Scotland) Act 2018. That would be smoother. It would be the most legally coherent way to effect the change that is needed and it would lead to more comprehensive—although by no means entirely comprehensive—domestic abuse legislation than we have at the moment.

Framing and labelling is important here, and it is important that this new crime be framed as part of the law around domestic abuse, in order to avoid some of the fear that people legitimately have around fetal rights and who the victim is. Framing it as a part of the law around domestic abuse underscores what the aim of the legislation is.

A members’ bill is not the right way to go. We do not need a standalone act. With a members’ bill, the member becomes the face of the issue, and that is not appropriate in this case, as the focus should be on those whom we are trying to serve.

The Scottish Law Commission does excellent work in all of these areas, and I think that someone could do an interesting academic project around comparative international studies of the laws in various jurisdictions. However, on this issue, the direct and most relevant comparison is with the rest of the UK.

As someone who has been immersed in the area for a number of years, I think that we have all the information that we need. We know that we are an outlier and there is nothing to stop us acting now. This does not need to be incorporated into a work programme. The Scottish Law Commission’s work programmes run for five years, and I think that, if the issue were incorporated into one of them, that could be seen as long-grassing it; I would not want that perception to be created.

Dr Scott

The idea of an aggravation is interesting. We have concerns about the way in which the existing child aggravation is working, but that reflects some of the concerns about the rest of the system that I have already shared. Making amendments to the legislation in relation to an aggravation would be a way to take a look at the way that children are framed in the 2018 act. That was not done in the way that we wanted it to be and it turns out that we were right, as it is not working well. It would also enable us to take a look at other opportunities to improve the legislation. Exploring an aggravation in this situation is interesting because, whatever the causal links are, we know that pregnant women are over-represented in the data on injury and harm to victims.

Paul Sweeney

That is a helpful contribution, as we need to hone in on what practical measures would be most effective.

Dr Neal, your points about the Scottish Law Commission and the idea of a members’ bill are helpful, too, and I agree with your reasoning in that regard. If we already have a pre-built solution, how best do you think it could be taken forward? Would the Government have to be persuaded to adopt the measure and use its time to steer it through? Is that the clear action that we need to focus on to effect that?

The Convener

I will let you respond in a moment, Dr Neal, but I should also say that a members’ bill is often the catalyst that leads to the Government adopting a proposal. It is difficult to quantify the success of members’ bill because, on quite a few occasions, the objective has been achieved because the bill has led to the Government understanding and adopting the issue rather than because the bill itself has passed into law.

Dr Neal

One of my anxieties around proceeding via a members’ bill is the optics of it—the idea that the issue becomes associated with a named MSP. Another anxiety that I have is around the prospect of success. Obviously, members of the committee know more about that aspect than I do, so I would defer to your knowledge about what route is most likely to be successful.

Steven Tidy

We also believe that the 2018 act is the most appropriate vehicle for the proposal.

I would say that amending the Sentencing Council’s guidelines for judges might be a more immediate goal. I know that it is soon going to consult on guidance in this area, so we would support moves in that regard.

Dr Neal

I agree. Obviously, the solutions are not mutually incompatible—we can pursue a number of solutions at the same time. Each of them might be serving complementary purposes, so I am in favour of a multi-pronged approach.

The Convener

I should say that, wearing another hat, I know that there are currently 19 members’ bills in the system, which is a record number at this stage in a parliamentary session. We are already probably at the point at which it is unlikely that any further members’ bills have much prospect of success before 2026, which is quite alarming.

Fergus Ewing

Dr Neal, you have said that you have been immersed in this area for years and you have helpfully alluded to practice in England, Wales and Northern Ireland. Could you submit any material that you think might be helpful to guide our deliberations on this? Plainly, the experience of areas where there is a specific offence is relevant, and the more information that we can glean about how the situations in those places compare with what has happened in Scotland, the better.

The Convener

We will reflect on these matters further in subsequent meetings, and the committee might agree now that we should write to one or two organisations to find out a bit more about the experience in England, Wales and Northern Ireland.

We are coming to a conclusion—we have gone on a bit longer than planned, but it has been an interesting discussion. Is there anything that any of you want to add? Is there anything that we have overlooked in our conversation?

I see that there is not. In which case, thank you all very much. This discussion has been hugely valuable to us in our consideration of the petition and we are grateful to you for giving us your time.

Colleagues, are we content to consider the evidence afresh at a future meeting?

Members indicated agreement.

We will suspend the meeting briefly.

09:57 Meeting suspended.  

10:00 On resuming—  


Mental Health Services (PE1871)

The Convener

PE1871 has been lodged by Karen McKeown on behalf of the shining lights for change group. Before we proceed, I should say that, in a moment, we will be discussing suicide and other challenging topics and that, if you are joining or watching our proceedings and know of anyone who is struggling, the NHS 24/7 mental health line can be reached by dialling 111.

The petition calls on the Scottish Parliament to urge the Scottish Government to carry out a full review of mental health services in Scotland to include the referral process, crisis support, risk assessments, safe plans, integrated services working together, first response support and the support that is available to families who have been affected by suicide.

We are joined by Karen McKeown. The committee does not routinely hear from petitioners; however, we were certain that having her with us would help us get a proper understanding of the issues, and we also felt that it would give her the opportunity to speak to the committee about why her petition is important. I thank her for coming to Holyrood and for taking the time to speak to the committee.

Karen is joined by Monica Lennon MSP, who I will not say has a season ticket to the committee—she might get a bus pass, at the very least—but is certainly an assiduous supporter of ours. She, too, spoke in support of the petition when we first considered it some time ago. We will invite Monica to contribute to our proceedings after committee members have concluded their questions.

Karen, before we begin, is there anything that you would like to say? My introductory question was to ask whether you would like to talk about your experiences and why you have highlighted them and lodged the petition.

Karen McKeown

I thank the committee for allowing me the opportunity to give evidence in person, and I also thank Monica Lennon for her support, which she has given me from the very start and continues to give.

I am here to be Luke’s voice—this is not about me, but about Luke. Sadly, my partner Luke Henderson took his own life on 29 December 2017 after we had asked for help eight times in the week before his death. We were begging for help, as was Luke; he did not want to die, but he felt as though there was no other choice, because nowhere was offering us help. He was very unwell and was having visual and audio hallucinations.

As I have said, no one would help us: every door was closed in our faces. We were at a loss as to what to do. I was that worried and concerned that I stayed awake so that I could try to keep him safe, to the detriment of my own health. I woke up on that dreadful night to find the love of my life—my soulmate and my best friend—dead. Our two children had to be carried by the police over their dad’s lifeless body with towels over their heads. The effects will be for ever in our hearts and our lives.

The events of that night have turned our lives upside down, and we have felt pain that we could never have imagined. We now have to live our lives without Luke in them. We have so many unanswered questions, so much pain and guilt and so much frustration at being let down. My own mental health has suffered and I have become a shell of a person. What support have I had from the NHS? Very little that I have not had to fight for.

The Scottish Government’s 2018 suicide prevention action plan—and indeed its 2022 action plan—say that there should be more support for people who have been affected by suicide. I have seen no evidence of those supports, and neither I nor my kids have received them. I have had to fight for every single bit of support that I have got.

I am not telling youse this today to get sympathy—I just want to share a wee bit of what life is like for me and for my family in having to live with this pain. I am no alone. Many people feel exactly as I do—let down—and they are supporting my petition. Those people are happy to speak to the committee separately. We all feel that we have been failed and we all have a common goal for reform.

I will address some of the issues that I feel have gone wrong with the 2022 action plan. It repeats many of the aims of the 2018 plan, but how are those aims and goals assessed? How do we know if the policies that are in place are working? We do not, because there is no assessment process in place. We need to find out what is working and not working, where funding needs to go and what services are doing well so that we can implement them fully throughout Scotland. I should say that I welcome the introduction of addiction and inequalities into the action plan. That is well overdue; it should have happened many years ago.

Recently, I have been doing my own research through freedom of information requests, focusing mainly on NHS Lanarkshire. Previously, I have submitted evidence on the number of beds that NHS Lanarkshire has, and I have asked further questions. It has only 113 general and acute mental health beds. People in crisis cannot get the support that they need, because of the lack of beds. The health board covers an area with a population of more than 600,000. How can you compare that number of beds with the number of people? That is just not possible.

In 2022, 71 suicide reviews were carried out, which means that 71 people took their own lives while being open to mental health services. That is just not good enough.

Waiting times are far too high. In Lanarkshire, the longest waiting time for child and adolescent mental health services is 904 days. In other words, a child is waiting 904 days to get the mental health support that they need. That is just not good enough.

All of that could be happening, because of a lack of staff numbers. Through my freedom of information requests, I am aware that some of the teams in Lanarkshire have half the staff numbers that they are meant to. That has had a knock-on effect on the staff themselves, causing high burn-out rates, and it also puts off people coming into the profession.

The fact is that the staff do not feel supported. They are having to hot-desk and do the work of three people. They are not being supported by management or Government. I would ask youse to call for anonymous evidence from staff, so that they can be honest about what is happening on the front line. What is down on paper and what is happening on the front line are two different things, because what is down on paper is not transpiring.

Failures in mental health services go back decades and even as far back as world war one, when such services became a thing. They have, for many years, been the Cinderella service of the NHS. Although they have received more funding, what they get is still not equal to what physical health gets. There are a lack of beds, a lack of trained staff and a lack services available for people.

I am calling for a review of mental health services, because I believe that it is the only way of determining whether public money is being spent wisely. Getting such a review is my whole aim today; it is the only way of determining whether risk assessments are working, for example. I do not believe that they are, because my partner was put at low risk of suicide, even though past assessments had put him at high risk, just because of his history. I do not know how he was assessed as being low risk before his death. These things can be manipulated.

Accident and emergency departments are not appropriate places for people in mental health crisis. As we have all read, A and E waiting times have gone through the roof. It is not viable for somebody who is struggling to sit there for 11 hours, trying to get mental health support.

I would love to see a separate hub or accident and emergency unit somewhere in the hospital that people could go to for immediate attention and the help that they require. That would also have a positive effect on NHS waiting times, given that, as I have documented in one of my previous submissions, so many people go to accident and emergency with mental health issues.

I could go on all day about the different failures, but the final point that I want to make is that mental health does not discriminate by age, sex or gender. Any one of us could be sitting in the same position that I am sitting in today. Anybody in this country could be sitting here, given that one in four people suffer from mental health issues. It is highly likely that one of youse will feel the same one day.

On mental health, there is nowhere that we seem to be getting it right—not in the community, not in the Scottish Prison Service, not with the military or ex-military or not with our youth. Our youth are our future—we need to protect our young people and get this right for them.

I am pleading with the committee—please call for a review of the service. Please call for evidence from staff and from the public, so youse can find out where they feel let down and see that what is transpiring on the front line is completely different from what is in the suicide plans.

The Convener

Thank you—that was very helpful. In just a moment, Alexander Stewart will pursue the matter of the scope of the review that you would like to see.

As the Citizen Participation and Public Petitions Committee, we are new to this particular case, but I understand that you lodged a petition in the previous session of Parliament. I want to understand what you feel, in your own mind, are the differences between your previous petition and this one.

Karen McKeown

I would not say that there are many differences. However, the actions that I asked for in the previous petition have not been completed. A hub was put in place, and NHS 24/7 has dedicated mental health advisers that people can call up, but they do not see anybody. We used that service previously with Luke—I called and spoke to the mental health nurse. I know that the service does not work. In order for the team to have been able to assess Luke, they would have had to see how he was presenting and whether he was responding to voices. They cannot do that over the phone. If he had been saying, “Oh, I’m not hearing voices”, they would have been able to see, if they were assessing him in person, whether he actually was responding to voices.

The Convener

In a sense, therefore, whatever assurances were given and whatever conclusions were drawn when the petition was considered in the previous session of Parliament, the delivery and execution of any of that has fallen short or has not materialised, such that those issues need to be brought back to the centre of our attention. Is that essentially the reason for this petition?

Karen McKeown

Yes. In addition, the situation with mental health was bad before Covid, but Covid highlighted a lot of the failures and a lot of negative attitudes with regard to mental health. The situation has continued to get worse, and it will only continue to get worse until we get social policy reform.

Yes. Thank you.

Alexander Stewart

I thank the petitioner for her evidence and for her courage in saying what she has said today.

You have talked about failures such as being abandoned and being let down by the whole process, and you want to see changes and a review. The Scottish Government has already put in place some measures that you are probably well aware of. We have talked about suicide prevention, and there is also the final report of the Scottish mental health law review. You have probably seen all of those things.

What else would you like to see? You have talked today about some of the experiences of individuals. As we know, men seem to make up a much larger percentage of those who experience suicide situations and circumstances. You have touched on what you would like the review to deal with. I want to go back over where you think the gaps are, and where you would want to see the review progressing.

Karen McKeown

There are a lot of gaps in the system. The review could start at the beginning, with early intervention. Education for our youth has to be a big part of it, because our youth need to know that it is okay to talk and that it is okay not to feel okay. At the minute, they do not know these things. One example is my own daughter; the first time that she heard about mental health was only after her dad died. Tools should be taught in school so that the youth understand these feelings and know that they are okay. That starts with early intervention.

The review could then look at brief intervention, which is a service for mild to moderate mental health conditions. That is not what it is being used for, though; instead, people in crisis are being sent to it. They are being told to use apps, on which thousands of pounds have been spent. I have had a look at those apps, and there is no way that they would help me, never mind someone in crisis.

10:15  

Once we get into crisis, we cannot get the services that we need, because of the waiting times. I was unable to get information on waiting times for adult services; I managed to get only the waiting times for CAMHS, and I was shocked to see that the longest waiting time in Lanarkshire was 904 days. That will probably be the same across the board, and more needs to be done about that. Staff need to be better supported. Staff are not being supported; instead, they are having to hot-desk. I have spoken to many staff who have left the NHS to go into office jobs, because they cannot take the stress and pressure any more. There needs to be a lot of focus on supporting the staff.

At the point of crisis, there are a lot of gaps. How can someone in psychosis and having hallucinations wait for hours in a busy A and E department? It is unrealistic, and it is harmful to them and to the public. We need a separate hub at accident and emergency—that is, a separate entity where people can go and receive crisis support for their mental health, in the same way that they can for physical health.

The Scottish Government has launched a new suicide prevention strategy, which is its blueprint for what it wants to happen. Do you have any confidence in it?

Karen McKeown

Not if the 2018 plan that the Scottish Government put in place did not work, given that the new strategy has pretty much the same goals. The only difference is that inequalities and addiction have been included. There is a link between addiction and mental health, which has been ignored for many years and has got progressively worse. That is a positive in the action plan, but let us see how it transfers to the front line.

Alexander Stewart

Who should the Scottish Government be talking to? You have given some compelling evidence, as an individual who has experienced trauma, but who else should the Scottish Government try to embrace to capture the real situation and circumstances out there?

Karen McKeown

It should go to the staff, but that needs to be done anonymously, because no staff member wants to whistleblow for fear of a backlash. If it is anonymous, staff can open up and feel that they arenae gonnae get any backlash. Otherwise, staff will not open up. They probably know how bad the services are; they are probably just as scared as I am. I have spoken to quite a lot of staff, and the things that they have told me really scare me. It is scary that these are our youths that we are talking about. These are our future generations—they are this country’s future.

The Convener

How we approach mental health has moved on considerably in the lifetime of this Parliament. When I joined, 15 years ago, there was still a tremendous element of stigma around mental health, and a real reluctance even to discuss these issues. Two or three MSPs from different parties were champions of the way in which the Parliament embraced the need to approach mental health differently. There has been success in the sense that there is a greater willingness now for people to come forward or to talk about mental health issues. That has resulted in a far greater number of people trying to access services, so even as services are expanding, demand is increasing. As I think you have rightly articulated, it has been problematic that the pandemic resulted in a freeze on our ability to take forward a lot of the work that had been in progress.

I do not quite understand how all this operates in practice. In acute medicine, there is a difference between somebody who has suffered a heart attack and requires to be dealt with and somebody who is having elective surgery for a knee replacement. However, in the hierarchy of mental health, is there an assessment of the severity or nature of the mental health issues with which individuals present? Does someone who is in need of acute and immediate support find that, in essence, they are simply in a bus queue, without anyone necessarily understanding where the priorities lie in the way that might happen in traditional medicine?

Karen McKeown

Definitely. There is an assessment process. Once the referral goes in from the doctor, there is a multi-agency meeting involving the health services to discuss what is appropriate—for example, whether it is psychology or a community psychiatric nurse. However, the staff are up against it, because there are not enough staff and case loads are already through the roof, so they cannot take on more cases. Even when they know that somebody is in crisis and needs immediate help, their backs are against the wall because they do not physically have the capacity to see those people. That is why there are a lot of missed opportunities to save people’s lives.

The Convener

You talked about some people presenting at A and E, which in your view is not the right place for them even though they were presenting with what we would call an emergency in mental health terms. Is it your argument that the ideal scenario would be to have somewhere else in hospital where people in that acute situation could present?

Karen McKeown

Yes. There needs to be somewhere where people can present immediately and get immediate support. When you phone NHS 24 to get help for mental health or speak to an out-of-hours doctor or anything like that, you are told either to contact the police if you feel that you cannot keep yourself or someone else safe, or to attend accident and emergency. That is the advice.

I put figures in one of my written submissions on the number of people who attended accident and emergency in the past three years. The figure was rather high. Those people presented at accident and emergency, but the number who went to mental health beds over a three-year period was something like 600-odd. I do not have the exact figures, but I put that in my most recent submission.

Marie McNair would like to ask a question. Unfortunately, we do not have a video link, so it is likely to be an audio-only contribution.

Marie McNair (Clydebank and Milngavie) (SNP)

Good morning, Karen. I give you my condolences for the sad loss of your partner in such horrific circumstances. You previously raised the issue of risk assessments, which you felt were not adequate. Are you aware of any improvements in that area since you last gave evidence on it?

Karen McKeown

I do not believe that there have been any improvements. The risk assessments can be manipulated. That is based not just on seeing it with Luke; when I was a student mental health nurse, the risk assessments could be manipulated—you were actually told to manipulate them so that you did not have to bring people in or place them as being at high risk. I do not think that anything has changed with risk assessments. They are very dangerous, and they do not pick up the risks.

Thank you.

Just out of interest, and following on from Marie McNair’s question, what was the experience in relation to that risk assessment?

Karen McKeown

Luke had had to go into hospital a few times to get mental health help and, with every previous risk assessment, because he had a history of suicide attempts, abuse and other things, that put him at higher risk. So, even before we went to that service, he should have scored as high risk for self-harm or suicidal ideation.

I have a report from 2016 that says that he was at high risk of suicide at some point. However, Luke’s risk assessment scored him as a low risk on the night before he took his own life. They changed his assessment to medium because I was not happy with that, so it can be manipulated.

Thank you. That has been helpful. We have covered quite a lot of ground, and we understand where you would like to see us move in relation to that. Monica, would you like to contribute?

Monica Lennon (Central Scotland) (Lab)

I am sure that you will agree that Karen McKeown is a hard act to follow, and I want to thank her for the time and effort that she puts into this. Karen mentioned some of the FOI requests that she submitted, particularly to NHS Lanarkshire. I have to admit that, when I saw some of the answers and the detail of some of the long waiting times, I said that we needed to go back to ask whether the figures were correct or whether they had not understood the question. Therefore, what we see in black and white is frightening.

Through the work that she does locally with others with lived experience and through voluntary work, Karen speaks to a wide range of people. She has also been very fair in trying to identify where there has been progress. The inclusion in the strategy of addiction and inequalities is good. Two years ago, we met the former Minister for Mental Health, who explained, “Ah, the addiction side—that’s for my public health colleagues,” so there was fragmentation in the approach. There is now a better understanding that we need a holistic approach. However, as we have heard from Karen and in written submissions from, I think, the Royal College of Psychiatrists and others, the capacity is just not there.

Therefore, if the review is going to happen, it needs to look at the real-terms resource and the backlog that we face in dealing with the challenges. There was an urgent question in Parliament last night about accident and emergency waiting times. Those figures give a good window into what is happening in the entire system. NHS Lanarkshire, which we have talked about today, has reached an all-time record low in dealing with those waiting times.

Karen is absolutely right that, for people who are in crisis, being in that A and E environment is not suitable. In fact, it can make everything worse and put them more at risk. Where are the trauma-informed services? Where are the quiet spaces? I would like to hear more from Police Scotland colleagues. I know from speaking to police officers on the front line in my region that they feel the pressure. Some good training has been rolled out across police and other front-line services, but that pressure is another sign that the system is not working.

We know how hard it is to get face-to-face contact in primary care—not just with general practitioners but with others. We know about the role of community pharmacists and advanced nurse practitioners. I do not doubt the good intentions of the Scottish Government and those working at a high level to run our health services. However, we need to factor in the backlog and the whole recovery agenda—we need to create that space in order to have an honest, independent look at what is happening.

Karen touched on the need for education, prevention and early intervention. Convener, you are absolutely right to talk about the journey that we have been on in this country to try to destigmatise mental health issues and to make it easier to have those conversations. However, we must also recognise that there is a spectrum, and Karen is right to say that, for someone who has low mood that is very temporary or low-level anxiety, some of the apps and signposting that we know about are probably appropriate.

However, for other people with other mental health conditions that do not always get the attention and understanding that they need, that is not helpful. In fact, it is probably counterproductive. Therefore, it is really great that the committee has invited Karen today. I notice that it is not normal practice, but I think that it shows that, in the Parliament, all members understand that. Sadly, the experience of Karen and Luke will resonate, because we all know constituents who have been through similar experiences and tragedies. I just want to back up everything that Karen has said.

10:30  

I know that in Parliament we struggle to find the capacity in our committees and in the chamber to give issues the time that they deserve. I hope that when the committee hears from the cabinet secretary or the minister—I think that it will be the cabinet secretary—the Government will not be defensive.

I know Karen very well—we have been working together for a few years now. All the constituents who come to me are not looking for reform out of anger and are not looking to blame people. Karen spoke with great affection for the staff—those on the front line who are trying to hold it together—and it is often their mental health that suffers.

Therefore, we owe it to everyone in Scotland, including the workforce, to really step back from this, so I hope that the Government will not be defensive. I think that we all recognise that there are very good intentions, but there is a gap between the high-level strategy and policy and the actual resource and experience on the ground. We know that we have to train the workforce, but when are people getting the time to do that, right now?

Alexander Stewart mentioned a couple of the relevant reports and strategies—that work is very welcome and we have been speaking about it a lot. I did not print it off because it ran to something like 900 pages, but the Scottish Mental Health Law Review report is a massive document—I think that the summary was about 113 pages. That tells you that the issue is complex. There are so many layers to it.

However, to go back to where Karen started, Luke did not want to die; he wanted to live. He loved his family; he loved Karen; he loved his children. He wanted to live. There are so many other families that carry that in their hearts, so suicide prevention work is important. It is also about making sure that everyone can live well and live their best life, and that our NHS continues to be the success story that we all want it to be. I will end by saying that I fully support Karen. I thank the committee again for all its work on the petition.

The Convener

Thank you, Monica. You said that the report is 900 pages long—that is almost as big as the number of days on the waiting list. It occurred to me that Parliament will potentially have dissolved before some people are at the top of that waiting list. It is getting close to 2026 before people will be seen, which is an indication of the scale of the issue.

Before we close, does Karen McKeown want to say anything in conclusion?

Karen McKeown

Just that I would really like to see a fit-for-purpose mental health service—that is my aim. It is not out of anger or anything; I do not want any other family to have to feel the pain that we have to feel every day, because it is horrible and I wouldnae wish it on anybody. We need a fit-for-purpose mental health service so that this stops happening.

The Convener

We have the cabinet secretary at our next meeting, where we will be able to pursue a number of the issues. Thank you, Karen, for your courage and resilience. It has been a privilege to have you with us this morning to discuss the issues. I know that I speak on behalf of all the committee when I wish you and your family every happiness in the future.

10:34 Meeting suspended.  

10:36 On resuming—  


Ancient, Native and Semi-native Woodlands (Protection) (PE1812)

The Convener

PE1812, on protecting Scotland’s remaining ancient, native and semi-native woodlands and woodland floors, was lodged by Audrey Baird and Fiona Baker, from whom we have previously heard, on behalf of the help trees help us campaign.

The petition called on the Scottish Parliament to urge the Scottish Government to deliver world-leading legislation giving Scotland’s remaining fragments of ancient, native and semi-native woodlands and woodland floors full legal protection before the 26th United Nations climate change conference of the parties—or COP26—in Glasgow in November 2021. Of course, that was the petition’s original aim but, even though we are now in the middle of COP27, the issue remains one of concern.

We last considered the petition on 4 May, when the committee indicated that it would like to visit some of the areas to explore the issues. As a result, on 21 September, we visited Pressmennan Wood in East Lothian, and I want to put on record our thanks to the Woodland Trust for hosting and looking after us that day.

At our last consideration of the petition, we also agreed to write to Scottish Forestry and all local authorities, seeking information on the operation and enforcement of tree preservation orders. We have now received responses from Scottish Forestry, 22 local authorities and the petitioners.

Throughout our consideration of the petition, we have heard that a number of issues are impacting on the effectiveness of current woodland strategies and policies and the protection of our ancient, native and semi-native woodlands and woodland floors. We also heard evidence on possible areas for improvement, including prioritising the development of the inventory of ancient woodlands; strengthening the legislative framework and language in existing policies such as national planning framework 4; and taking steps to improve compliance and enforcement. We have also heard from the relevant minister in our consideration of those matters.

Having had a visit, and having heard from the petitioners, various representative organisations and the minister, I just wonder where, on the balance of all the evidence that we have received, members would be most comfortable going with regard to the petition.

Alexander Stewart

As you have said, it has been quite a journey, but a very informative one. It is good that a reasonably large number of local authorities have come back to us to indicate where they stand and what the situation is.

It is appropriate that we now write to the Scottish Government to highlight the evidence that we have received and to set out recommendations for addressing the issues raised in the petition. I suggest that we also write to the Net Zero, Energy and Transport Committee and the Rural Affairs, Islands and Natural Environment Committee to share the evidence and our recommendations.

Members can clarify that with the committee clerks, who can put the information together. As I said, we have all been involved in what has been a very in-depth process, and it has been really quite successful. As a committee member, I have certainly learned a lot more about the whole issue, and it is vitally important that we can now give the evidence to the Scottish Government to highlight the issues that we have found.

The Convener

Are colleagues content for the clerks to summarise the evidence that we have heard from the various parties and bring forward some recommendations that have arisen from the conversations that we have had? We can have a look at that summary at a future meeting, ahead of submitting it by way of a formal representation to the Scottish Government and to the Net Zero, Energy and Transport Committee. Does that meet with the committee’s approval?

Members indicated agreement.


Autism Support (PE1837)

The Convener

PE1837, which was lodged by Stephen Leighton, is on providing clear direction and investment for autism support. The petition calls on the Scottish Parliament to urge the Scottish Government to clarify how autistic people who do not have a learning disability and/or mental disorder can access support, and to allocate investment for autism support teams in every local authority or health and social care partnership in Scotland.

We last considered the petition on 4 May, when we agreed to follow up with the Minister for Mental Wellbeing and Social Care on a number of points that were raised during our evidence session. In response, the minister has detailed a range of on-going work to support and invest in people with autism.

I am pleased to say that the petitioner has said that he is satisfied with the outcome of the minister’s response. He states that the letter is

“a safety net that ensures all autistic people in Scotland have the legal right to at least an assessment of their needs”.

As the petitioner is satisfied, he has requested that we close his petition, and he has thanked the committee for its hard work on the matter. I thank Mr Leighton for bringing the petition to the committee. We are pleased to read positive reflections about his experience of engaging with us on the matter, and I am delighted that the petition has led to a successful outcome.

With the committee’s agreement, therefore, we will close the petition. Are members agreed?

Members indicated agreement.


Island Community Representation on Boards (PE1862)

The Convener

PE1862 is on introducing community representation on boards of public organisations that deliver lifeline services to island communities. I am almost surprised to say that we do not have Rhoda Grant with us this morning as we consider the petition. If you are watching, Rhoda, I say good morning to you.

The petition was lodged by Rona MacKay, Angus Campbell and Naomi Bremner on behalf of Uist economic task force. It calls on the Scottish Parliament to urge the Scottish Government to introduce community representation on boards of public organisations delivering lifeline services to island communities, in keeping with the Islands (Scotland) Act 2018.

We considered the petition very recently, at our meeting on 26 October, when we took evidence from the Minister for Transport, Jenny Gilruth MSP, and Fran Pacitti, who is director of aviation, maritime, freight and canals at Transport Scotland. During the evidence session, the minister and director shared information on the progress that is being made to encourage islander representation on boards, such as being more proactive in how the roles are advertised and making it an essential criterion that applicants for the position of non-executive director have a good understanding and knowledge of the issues affecting island communities.

Do members have any comments or suggestions for actions?

Alexander Stewart

I am delighted that we have had such a robust outcome so far, but it is important that we now seek further information. We should write to the Minister for Transport to find out about the process for appointments to the board of David MacBrayne Group and what work is being done to encourage candidates from communities. We can also ask for an update on the communities’ communication with ministers and with Highlands and Islands Airports Ltd with regard to the proposals that the petition sets out.

Thank you, Mr Stewart. Are colleagues content with those actions?

Members indicated agreement.


British Sign Language (National Qualification) (PE1867)

The Convener

PE1867, which was lodged by Scott Macmillan, is on establishing a new national qualification for British Sign Language. I highlight that consideration of the petition will, as we have discussed, be available to watch on the Scottish Parliament’s BSL channel.

The petition calls on the Scottish Parliament to urge the Scottish Government to encourage the Scottish Qualifications Authority to establish a national qualification in British Sign Language at Scottish credit and qualifications framework level 2. We last considered the petition at our meeting on 4 May, when we agreed to write to the Scottish sensory hub. We now have responses from the National Deaf Children’s Society and the Scottish sensory hub.

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The National Deaf Children’s Society stated its hope that BSL can be afforded similar support and status to that which the Gaelic language has received. It also highlighted that, without a national qualification, we are unlikely to see sufficient numbers of teachers choosing to develop their skills in teaching BSL.

The Scottish sensory hub noted that students currently

“earn more university entrance points for spoken language qualifications than ... for BSL”,

which it suggests results in students “reluctantly” opting for

“spoken language courses ... to maximise university entry opportunities.”

That is despite the increasing number of people who wish to take up BSL.

The Scottish sensory hub highlighted that the

“development of BSL qualification pathways and ... increased BSL fluency amongst the general population”

could have a positive impact on the wellbeing of deaf individuals and their sense of connectedness in everyday life. Any exposure that we have had to BSL has visibly demonstrated that to colleagues and the Parliament.

Do members have any suggestions for action?

Alexander Stewart

We should write to the Cabinet Secretary for Education and Skills to seek an update on the development of the next BSL plan and explore how BSL national qualifications could be developed. In writing to the cabinet secretary, the committee might wish to highlight the development of general certificates of secondary education in BSL in other parts of the United Kingdom; ask what steps the Scottish Government is taking to ensure that schools have the opportunity to teach BSL from primary 1 to higher and advanced higher levels; and seek information on what further considerations the Scottish Government has given to affording BSL qualifications that are equivalent with other spoken languages as part of the uptake of BSL qualifications.

The Convener

Thank you, Mr Stewart. That was a comprehensive series of suggestions. If colleagues do not have anything to add, are we content to do what has been suggested?

Members indicated agreement.


NatureScot (Decision-making Procedures) (PE1895)

The Convener

PE1895, which was lodged by Gary Wall, calls on the Scottish Parliament to urge the Scottish Government to make it mandatory for NatureScot to explain its conservation objectives in decision making within the framework of the “Scottish Regulators’ Strategic Code of Practice” and the Scottish Government’s guidance “Right First Time: A practical guide for public authorities in Scotland to decision-making and the law”.

We last considered the petition on 18 May, at which point we agreed to write to NatureScot to ask how it ensures that the process for licensing refusals and reasons for refusal are clear and consistent. Its response states that the approach is

“in accordance with legislation following internal policy and procedures”,

and that a record of all assessments is kept. NatureScot says that, in cases of refusal, a discussion takes place with the licensing manager and the unit manager is informed. It states that the applicants are

“clearly informed in writing of the reasons for refusal.”

The petitioner’s recent submission to the committee reiterates his experience of a licence refusal where a conservation objective was not stated in the refusal explanation. He also states his view that the complaints procedure is not impartial, as it is conducted by NatureScot staff.

Do members have any comments or suggestions?

Alexander Stewart

We are now at the stage that, under standing order 17.5, the petition can be closed, on the basis that NatureScot routinely issues licence refusals, and that it has stated that its approach

“is always to explain to the applicants the reasons for the refusals against the relevant legal tests”,

which can include the objectives.

Also, a conservation objective would not apply to every licensing refusal, and therefore setting a mandatory requirement for NatureScot to include that in every refusal would not be appropriate.? For those reasons, I think that the petition should be closed under standing order 17.5.

The Convener

I realise that the petitioner’s experience is not consistent with the representations that we have received from NatureScot, but I do not know that there is much more that we can do. We have received assurances from NatureScot, so I think that Mr Stewart’s proposal seems to be the only one that is open to us. If no other member wishes to comment, are we content to close the petition?

Members indicated agreement.

The Convener

I thank the petitioner for raising the issue. I am only sorry that I do not know whether, ultimately, we got the satisfaction that he might have hoped to get. However, we have NatureScot’s assurances on record. Obviously, it is open to individuals who feel that the provisions are not being honoured to lodge another petition in future.


Rest and Be Thankful Project (PE1916)

The Convener

PE1916, which was lodged by Councillor Douglas Philand and Councillor Donald Kelly, calls on the Scottish Parliament to urge the Scottish Government to instigate a public inquiry regarding the political and financial management of the A83 Rest and Be Thankful project, which seeks to provide a permanent solution for the route.

When we last considered the petition—which was quite some time ago, on 20 April—we agreed to write to Transport Scotland. We have received a response from the Minister for Transport that indicates that five possible route options are currently being assessed, with Transport Scotland expected to make an announcement on a preferred option for a permanent solution by spring 2023. We have also received a response from the petitioners, who have restated their call for a public inquiry and highlighted their concerns around the costs of finding a permanent solution for the Rest and Be Thankful.

Obviously, there are huge issues attendant upon a public inquiry, not all of which are necessarily going to see us make the progress that we might wish. Do colleagues have any suggestions to make on the petition?

Alexander Stewart

You have summarised where we are with the petition, which as you have said has been going for some time now. However, in light of the petitioners’ concerns, we should write to the Scottish Government and seek information on what impact the capital spending review will have on the funding of the A83 Rest and Be Thankful project and whether the slowdown in funding for the road improvement project is likely to have an impact on the seven to 10-year timescale for the solution for the route to be put in place.

The community still wants a public inquiry to investigate the financial management of the project and to seek a permanent solution for the route, but that is a bigger issue for us to deal with at this stage.

Those are my recommendations, but I am open to other members’ views on the topic.

Fergus Ewing

I agree with Alexander Stewart. I note that in its response Transport Scotland has stated that delivering a permanent and resilient solution is a priority, which is welcome, but I think that the seven to 10-year timescale will cause concern and consternation in the parts of Scotland that are reliant on the link. When the road is closed, the detour is very substantial indeed and far longer than any other detours that I know of that affect such a large group of people. I know that these things are complex, but I am concerned about the length of time that all of this will take and the fact that the preferred route and solution has not yet been identified in order to provide reasonable transport links for people in those parts of Scotland.

The Convener

I echo those comments. The committee seems to have been discussing the issue one way or another for seven to 10 years, and the idea that we are seven to 10 years away from achieving something that has not yet been agreed is a concern.

Paul Sweeney

I am mindful of the points that colleagues have made, but I do not think that it is necessarily helpful to have the sort of ruminating and backwards-looking inquiry that is often quite expensive and tends not to improve operational performance. The petitioners have highlighted a broader strategic issue, which is that in Scotland—and perhaps across the UK—we are incredibly inefficient at delivering major infrastructure programmes. This is yet another dog of a project that has gone on for far too long, and the huge administrative costs associated with the constant procrastination over it are completely unacceptable.

I would contrast that with the approach to the emerging structural problems that were identified on the M8 in central Glasgow at the Woodside viaduct. In the past year, Transport Scotland has introduced an emergency structural repair programme that has ridden roughshod over local public opinion in delivering the maintenance of the trunk road network, which is not necessarily what people in Glasgow want. In contrast, the A83, which is a vital artery and critical for access to the west Highlands at any time, has been stagnating on the back burner for a long time.

There is a broader issue. We need to use the petition as a device to keep pressure on the Government and Transport Scotland to ensure that the project is delivered in a timeous fashion. Although the Government has indicated that there is a timeline that runs into next year, which, on the face of it, sounds satisfactory, the petition may be a useful way of keeping a check on that and allowing the petitioners to continue to ensure that the project moves forward at a satisfactory pace.

The Convener

As a committee, we might be ready to agree that we will keep the petition open until, at the very least, we have a preferred route identified and some understanding of the timetable and financial underpinning of the recommended solution. Are members content to do that, and to follow up on Mr Stewart’s suggestion?

Members indicated agreement.


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