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Having listened to the exchange between Liam Kerr and the cabinet secretary, although I was minded to support amendments 104 and 105, the cabinet secretary has satisfactorily answered the question. The fact that the Law Society of Scotland is going to be consulted is a good belt-and-braces approach.

I want to raise some issues in relation to the enforcement powers. Cabinet secretary, you said that you would check with the Crown Office. I think that that is vital, and I will say why. If we are going to give the commissioner enforcement powers against criminal justice agencies, I note that amendment 135 is quite far-reaching, in that the commissioner can report the matter to the Court of Session.

I do not know what the mechanism is—I am not familiar with it. Is it a new mechanism, or does a mechanism already exist? Usually, there is a process to get into the Court of Session, but the amendment does not say what that will be. Is it something completely new? We did not discuss that at stage 1.

My primary concern is about the requirement to supply information. If there was a dispute between the commissioner and the Crown Office as to whether the information to be supplied was relevant to the commissioner’s work, it seems quite a jump that the commissioner could, theoretically, just report the matter to the Court of Session, and the Crown would then have to defend itself in the Court of Session, which would consider the matter.

I am not saying that that understanding is correct, but I have been reading the provisions in the past few days, and I think that we perhaps need to qualify that further. The aim of the bill is to bring about a culture change as much as anything else, and there would be co-operation, but the black letter of the law always has to be clear.

I am a wee bit concerned that the powers of the commissioner should not necessarily override the view of the Crown Office that information is not relevant. Again, a bit more consideration could be given to the issue of supply of information in particular. That is my primary concern—there might be a difference of opinion about whether information is relevant, and we could end up with a battle in the Court of Session between the commissioner and the Crown Office as to the use of their enforcement powers. That may be an issue to consider for stage 3.

Sure.

Okay—thank you very much for that.

Several committees have scrutinised the Crown Office and Procurator Fiscal Service—I think that Rona Mackay might have been involved in that work. The COPFS has gone through periods of change and it is probably a bit better resourced than it might have been a decade ago. That is relevant because Mr Findlay’s and Mr Greene’s amendments speak to notification, but there is a wider issue in relation to why pleas are taken.

I want to get on the record that it is very important that future Governments continue to resource the Crown Office and to recruit procurators fiscal who are particularly skilled at taking on cases that are not for every lawyer. I do not know whether the lawyers around the table would agree, but prosecuting is not for every lawyer. At the end of the day, you must prove that the person who is accused committed those crimes—that is what all prosecutors should be doing. Periodically, committees should look at their workload to see whether there are any barriers to their doing that.

The centralisation of decision making—the fact that discretion has become more centralised—has caused concern. We had a debate in the committee about how centralised decision making has become in the Crown Office. That is relevant, because it is all part of the picture of the impact on victims.

Will the member give way?

I agree with what you have said about the abuse that goes on, but do you agree that what is not helping women, particularly those in domestic abuse cases, get to court and in front of a sheriff in the first place is the lack of legal aid provision? Some people see this as a criminal matter—and it is—but the situation is really impacting on women who are trying to access legal aid for such cases.

Very briefly. These amendments are in keeping with the theme of a victim’s right to know. As Russell Findlay and Jamie Greene have said, one of the takeaways for the committee when it listened to victims was that they did not feel part of the case in which they were the main complainer. I am very sympathetic to that.

I want to make a few points that are relevant here. First, I am not aware of the current situation. I remember that a former Lord Advocate—I think that it was Colin Boyd—announced to Parliament that, for the first time, the Crown Office would tell complainers and victims why it did not proceed with the cases, when it previously did not do so at all. I have no objection to putting that in law, but I want to know whether the Government is minded to say what the current position is and—

Yes, I agree. It is a principle, but it is for the Government to see how it could bring it about, if it agrees, to make it an efficient part of the system.

Of course I will.

I agree with that. I was also going to say that, between stages 2 and 3, the committee should do something in relation to the Parole Board for Scotland. There has been a long delay between stages 1 and 2—to be fair, I imagine that the Government is trying to resolve other issues in parts 4 and 5—and, arguably, there might have been scope to do a bit more consultation. However, I think that everybody knows that the demands of scrutinising the bill are all-encompassing.

For those reasons, I will probably abstain on most of the amendments if they are put to a vote. That is because, although I agree with what Jamie Greene is saying, I am not comfortable with not hearing from the Parole Board. If, in principle, victims are able to say what they feel about the release of a prisoner—and it is right that they should do so—that could impact on whether that prisoner is released. If I have understood the principle behind it, and if it is not just a talking shop that a victim would go along to in order to say how they felt, we would expect the Parole Board to consider that.

Amendment 245 is about the release of prisoners, which requires a separate discussion.

There are other amendments on the Parole Board, and I feel strongly that we need to hear from the Parole Board on all of those. I hope that whoever makes the decisions about timetables, in consultation with the committee, can allow some time for that.

I turn to rights of audience. I thank your team for all the work that they have done in responding to the committee’s concerns on that, but it might be helpful to put some of this on the record.

My understanding is that you have tried to address the question of rights of audience because, if a case is prosecuted in the High Court, it will attract not only an advocate depute on behalf of the Crown but counsel on behalf of the defence. You have tried to replicate the current position as best you can and to get the right approach in relation to anything that is likely to attract a sentence of more than five years. However, I do not think that you have said anything about who would prosecute those cases. As you know, in the sheriff court, it is procurators fiscal who prosecute cases, but advocate deputes prosecute in the High Court. Is there still a gap in relation to who appears in the sexual offences court?

If you solve the question of rights of audience to ensure that the accused is represented by counsel in the same way that they would have been had the case gone to the High Court, correspondingly, you need to ensure that there is an advocate depute prosecuting the cases that were previously prosecuted in the High Court. We are talking, for example, about non-rape cases involving serious sexual offences that would attract sentences of more than five years.

I do not know whether you have said anything about that, but it has occurred to me that that needs to be resolved as well.