Seòmar agus comataidhean

I will rewind the committee back to an earlier point in this journey. There was a high level of criticism of the initial approach in the bill. Indeed, the committee heard evidence on the issue, which I recall also came from the senators of the College of Justice. There was a fair amount of media commentary, too, particularly on the insecurity of tenure, and other legal issues were raised on the airwaves.

The Government has opted to follow the committee’s recommendation. In this instance—I hope that I am correct in saying this, but I am sure that there is a submission from the senators on this point as well—we would be better advised to follow the existing process.

I understand Mr Kerr’s point about perception, but we are copying an existing process for the appointment of temporary judges, so there is absolutely no power grab by ministers.

Thank you, convener. I recognise the importance of assessing the impact of legislation. Amendment 169 provides for just that by placing a duty on the Scottish ministers to review the operation of the act and submit two reports to the Parliament.

A key aspect of the bill is the cumulative impact of its reforms, in terms of both improving the experiences of victims, witnesses and vulnerable parties and modernising the system and its processes. A whole-bill reporting requirement, as created by amendment 169, will ensure that the full package of reforms can be properly considered. Instead of there being different reporting requirements for different parts of the bill, which would mean that each topic is looked at in isolation, the amendment will allow us to consider both individual policies and the package of reforms as a whole.

The timing of the two review points reflects the likelihood that elements of the bill will be commenced at different times. The initial reporting point of five years after royal assent will mean that ministers are required to account for what progress has been made by that time. The second review point, a further five years later, will ensure that the act can be considered in its entirety when all of its provisions have commenced and that the effect of the different elements can be effectively reviewed.

It is absolutely vital that those whose experiences the bill aims to improve are included in any review. Therefore, the list of persons whom ministers should consult in respect of delivering the reporting requirements includes victim support services, persons representing the views of victims and witnesses in criminal proceedings and of vulnerable parties and witnesses in civil proceedings, and representatives of the judiciary, justice agencies and the legal profession. All those groups will be impacted by the bill and all can provide data, evidence and views that can be used to assess its impact. That list of those who should be consulted is non-exhaustive, so others can be engaged with as needed.

On data collection for the reports, the Scottish Government will work with those who are listed to develop the operational policy approach on what data would be helpful for assessing the legislation’s effect as part of the bill’s implementation.

At last week’s committee meeting, I undertook to work with Pauline McNeill ahead of stage 3 to ensure that any review of the operation of the bill includes appropriate consideration of developments relating to corroboration. That demonstrates my willingness to work collaboratively to ensure that the Parliament can continue to scrutinise the matters that we have been debating in recent months, while also making sure that the bill works as intended.

I move amendment 169, and I ask members to support it.

The draft timescales are not entirely bolted down, but we would be looking at an overall implementation period of three to four calendar years. All of the bill should then be in place, albeit that it will be phased in.

Amendment 169 agreed to.

Section 67—Regulations

Amendment 55 not moved.

Section 67 agreed to.

Section 68 agreed to.

Section 69—Interpretation

Amendment 93 not moved.

Amendments 170 and 171 moved—[Angela Constance]—and agreed to.

Section 69, as amended, agreed to.

Section 70 agreed to.

Schedule 4—Minor and consequential modifications

Amendment 56 not moved.

Amendments 228 to 232 moved—[Angela Constance]—and agreed to.

Schedule 4, as amended, agreed to.

Section 71—Commencement

Amendment 271 not moved.

Section 71 agreed to.

Section 72 agreed to.

Long Title

Amendment 57, 134 and 58 not moved.

Amendment 59 moved—[Sharon Dowey]—and agreed to.

Long title, as amended, agreed to.

We have looked at the costs of the pilot, and that information could readily be made available to members. With respect, I will turn the tables a wee bit and reciprocate by asking whether members have looked at the costs of their amendments. We can always compare and contrast our approaches.

There is a range of preparatory work to establish the pilot and total costs. That includes the recruitment of staff and ensuring that all necessary arrangements for its smooth running are in place, including awareness raising regarding how complainers can access it. We have some ballpark figures for that; they might not be narrowed down specifically in terms of pounds, shillings and pence, but we have worked hard with those proposing the pilot to reduce the cost. I will be able to provide further information on that.

The short answer is yes. If I recall correctly, we submitted a written note to the committee on the timescales last year. I do not have that at hand—either I submitted a note or I have answered a parliamentary question, possibly from Liam McArthur—but there is information that I can forward to members. There is a timetable.

I have nothing further to add.

Amendment 219 agreed to.

Amendments 220 to 227 moved—[Angela Constance]—and agreed to.

Section 64, as amended, agreed to.

After section 64

This is a sensitive subject, so I will lay out in detail my position on Liam Kerr’s amendments. Although they are well intentioned, I cannot support them as they raise significant policy issues.

As members have heard from Mr Kerr, amendment 129 would fundamentally alter the anonymity reforms in the bill by extending the legal right to anonymity so that it would continue to apply after the death of a victim. Amendment 131 would create an application process to the sheriff for dispensing with a deceased victim’s right to anonymity.

As members will be aware, the Scottish Government carried out a consultation on approaches to reduce the trauma that media reporting of child homicide cases can cause. After careful consideration, I concluded that legislation would not be an effective approach to dealing with the complexities of media reporting on those cases. The consultation responses raised issues that made it clear that there would be serious difficulties with developing legislation that could strike an appropriate balance between privacy rights and freedom of expression, and that there would be difficulties with the practical enforcement of such legislation, particularly as media and social media cross borders.

Instead, I announced that the Scottish Government will work on non-legislative measures that could improve the experiences of families who are affected by reporting on child homicide cases. Sensitive reporting in respect of victims of sexual offences is a critical aspect of responsible journalism, and dialogue with the industry about how we move forward has already begun.

The policy of anonymity in the bill is focused on the individual victim, who, in almost all cases, will be alive after the committal of the offence that has given rise to their anonymity protections. That is different from child homicide anonymity, when the suggestion of anonymity is, of course, for the benefit of surviving family members.

When developing the bill, we looked carefully at the experience of other countries that have sought to provide anonymity for victims beyond their death. It is significant that jurisdictions that have extended the right to anonymity beyond a victim’s natural life, which include Ireland and individual states in Australia, have subsequently amended their legislation due to the unintended and damaging consequences for bereaved family members. One of the reasons why laws were reversed was that there was a risk of criminalising or silencing bereaved friends and family who, with entirely understandable intentions, wished to comment on the victim’s death, their memories of them and their legacy. Other reasons included the curtailment of freedom of expression and the difficulty of enforcement in relation to social media.

Members will recall Dr Tickell’s evidence at stage 1. Reflecting on the lessons that have been learned from international practice and experience, he said:

“well-intentioned legislative reform has caused people significant problems.” —[Official Report, Criminal Justice Committee, 31 January 2025; c 49.]

More practically, in relation to the operation of the right to anonymity, United Kingdom Government legislation will be needed to ensure that the restrictions apply to publications elsewhere in the UK if they are accessible in Scotland. In England and Wales, the right to anonymity automatically expires on the death of the victim.

Mr Kerr’s amendment 131 would provide a mechanism for the court to consider applications to relax the right to anonymity without being clear about how the court would decide. It proposes that the court use a test of whether there is “no good reason” not to grant an order to disapply the right to anonymity. It is hard to see how the court could make that judgment if individual bereaved family members had different views on anonymity. That was one of the key concerns that was raised in the consultation on deceased child anonymity.

Liam Kerr’s amendment 130 would reduce the scope of the anonymity protections for victims. It would mean that victims of the offences of human trafficking and modern slavery would qualify for anonymity only when there had been a sexual element to the offending behaviour. Under the bill, victims of each of the offences of criminal exploitation, as well as some other offences of limited scope, would gain an automatic right to anonymity, regardless of whether there was a sexual component to the behaviour. Those offences are included because those victims suffer from the same privacy and dignity concerns as victims of sexual offences. The position in England, Wales and Northern Ireland is the same, as victims of human trafficking have a right to anonymity with no requirement for there to have been a sexual element to the offences.

Although I cannot support amendments 132 and 133 in their current form, I offer to work with Mr Kerr to consider whether new amendments relating to adult victims could be developed for stage 3. A fundamental principle of the anonymity framework is that a victim controls their own anonymity—they have full and complete agency. Under the bill, an adult victim can waive their right to anonymity by publishing their own information or publishing through a third party, without the involvement of a court.

Waiver through a third party is established through a defence to the new criminal offence of breaching anonymity. The adult waiver defence provides that a person who publishes identifying information about an adult victim with the written consent of the victim does not commit an offence as long as the victim is at least 18 years old and their consent was not withdrawn in writing before publication. That is the same as the approach in England, Wales and Northern Ireland.

I can see that Mr Kerr’s amendments 132 and 133 are well intentioned in seeking to add a new method by which consent could be provided. However, I have concerns that, as drafted, they have the potential to weaken the procedural safeguards that are being put in place for victims and third-party publishers. I say that because there is no specification as to what some “other recorded” form of consent means or the acceptable parameters of that alternative method. That could create the risk of a publisher going public with the identity of a victim of a sexual offence under the mistaken belief that they had permission to do so, when the victim did not provide unambiguous written consent—for example, two people might have different understandings of a verbal conversation that has been recorded.

My concern is heightened, given that we are considering the operation of a new criminal offence, under which any ambiguity or uncertainty could have significant implications for individual publishers. We all want to ensure that there are sufficient and accessible ways in which an adult victim can make clear to a publisher their consent. However, I am not convinced that the bill, as it stands, is insufficient in taking the simple approach of written consent, which may be a short email or letter that confirms consent for publication.

For those reasons, I ask the committee to oppose Liam Kerr’s amendments in this group, but I commit to discussing amendments 132 and 133 with him ahead of stage 3.

I will now speak to my amendments in the group. Amendment 158 is a relatively minor amendment that adds the offences of forced marriage and forced civil partnership to the list of offences that will gain an automatic right to anonymity. The policy rationale for that is the same as applies to the current extension of anonymity protections beyond sexual offences to certain other offences that share similar underlying concerns regarding preserving a victim’s privacy. It is worth noting that the equivalent offence in England and Wales of forced marriage and forced civil partnership also has victim anonymity protections in place.

Amendments 159, 162 and 167 are minor clarifying amendments on the scope of the core anonymity protections in the bill and the operation of the new offence of breaching anonymity.

Amendment 168 provides for the right to anonymity for child victims of sexual offences and the other listed offences in the bill to take precedence over the existing more general provisions in section 47 of the Criminal Procedure (Scotland) Act 1995, which contain reporting restrictions relating to any offence of which a child is a victim. Amendment 168 will ensure that child victims of sexual offences and the other listed offences that qualify for an automatic right to anonymity benefit from the bespoke protections in the bill. That will ensure, for example, that child victims of sexual offences gain automatic lifelong anonymity, rather than protections ending when they attain adulthood or even earlier under the general provisions in the 1995 act.

Amendment 160 is a technical clarifying amendment to address a recommendation by the committee in its stage 1 report that there should be certainty that the protections that are available to victims will not be impacted by an acquittal verdict in a criminal case. It is not the policy intention that a victim would cease to have the right to anonymity if criminal proceedings were raised that resulted in an acquittal verdict. Amendment 160 puts that beyond doubt.

Amendments 164 and 165 are minor clarifying amendments that reflect points in the committee’s stage 1 report on the operation of the public domain defence. They make minor changes to the wording of the public domain defence to make it clear that it will not protect people who share publicly a child victim’s identifying information, even when a child has self-published their own story. That reflects the policy that extra safeguards be in place for children before a third party can lawfully publish identifying information about a child victim of a sexual or other relevant offence through the requirement of judicial oversight.

Finally, amendments 161, 163 and 166 are minor technical amendments to adjust the wording of the definition of “child” and references to age within the anonymity framework, so that there is internal consistency in the bill.

I understand, appreciate and endorse the comments that Ms McNeill makes with reference to the Lord Advocate—she is an absolute champion of these matters as well as others. From a Government perspective, ultimately, I must emphasise that the amendment is likely to fall outside the legislative competence of the Scottish Parliament, as it would interfere with the Lord Advocate’s determination of prosecution policy, and that is where I am stuck.

Although I very much understand Pauline McNeill’s intention, amendment 77 seeks to make provision for a process that, I think, requires more nuance and flexibility than legislation permits, and it is for that reason that I urge members to reject it.

I also do not support Katy Clark’s amendment 60 and Maggie Chapman’s amendments 265 and 266, which are concerned with independent legal representation for complainers at all stages of criminal proceedings. I very much understand the desire to improve how sexual offence complainers are supported throughout criminal proceedings. We all want to see improvements. However, the independent legal representation provision in the bill as it stands is very firmly focused on what is a deeply intrusive aspect of sexual offence cases in terms of sexual history evidence. The change that the bill will bring is already significant in breaking new ground for complainers, with the introduction of a third party into proceedings.

Providing for independent legal representation throughout a sexual offence case presents complex challenges and could create many unintended consequences that go well beyond the impact of independent legal representation for section 275 applications. At stage 1, Lady Dorrian cautioned that anything beyond independent legal representation at the section 275 application stage would derail trials and cause delays. Lord Matthews also explained that a third party would not be able to cross-examine witnesses or the accused, stressing the role of the Crown as public prosecutor.

I note the committee’s conclusion at stage 1 that the immediate focus should be on properly resourcing ILR in respect of section 275 applications.

I agree with that—we must not confuse representation with advice or advocacy. Ms Chapman has made that point consistently throughout the debate on the subject. Regarding the pilot that I have outlined today, it certainly is my hope that that will start by next year—I would want it to have commenced by then. That may not be without its challenges, but I assure Ms Chapman that my focus is on 2026.

To pick up the point regarding advocacy, that is complementary to independent legal representation, independent legal advice and wider support for victims. As we have discussed, there can often be confusion around those areas, but nonetheless they are interlinked; Ms Chapman and I have discussed that when we have met.

Ms Chapman’s amendment 264 is broad, and my concern is that it is not clear who would provide such support. I put on record that support is currently provided that does not require to be rooted in legislation. My overriding point is that some of the discussions that we are having, in particular with regard to budget and funding, are, in my view, negotiations that are more suited to the budget negotiation process, rather than some of the more nuanced negotiations that we need to have on legislation. Nonetheless, I appreciate that there are different views on that round the table, particularly at different times.

For the record, I note that independent advocacy support is currently provided free of charge by Rape Crisis Scotland’s advocacy programmes, and I note the comments that Ms Chapman made earlier on that. It is a national service that receives £2 million annually from the Scottish Government. In principle, it aims to provide support to victims in a flexible way, from before a statement is made and beyond the resolution of proceedings.

There is also the victim-centred approach fund, which has provided more than £18 million to Victim Support Scotland over the past three years to offer free information and support to victims of crime. The fund forms part of our fairer funding pilot, which means that recipients continue to receive awards over the next two financial years.

I do not support amendment 264, as I do not think that it is the best way to proceed.

Yes.