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That is fine—thank you.

I have a brief question about amendment 210, which the cabinet secretary just talked about and which would pull out the reference to a complainer who

“otherwise falls to be treated as a vulnerable witness”.

As I understand it, the intention is to deal with that through other legislation, such as through the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 or something like that. Can you confirm that that is the case and are you able to give us any timescales for when it might happen?

My starting point is that I feel that that is the right thing to do. My concern, however, on which I would be keen for you to allay my fears, is about the new duty that amendment 77 sets out. The amendment would impose a duty to

“provide the complainer with relevant information”,

and it goes on—rightly—to define “relevant information” as various things. The proposed new subsection 5(d) of the Criminal Justice (Scotland) Act 2003 includes, as “relevant information”,

“information requested by the complainer”.

That makes sense, but it seems very broad. In theory, surely the complainer could ask for anything under that provision. Are you able to explain to me why you choose to make it such a wide right in law, and have you considered the practical impact of including that particular subsection?

I have five amendments in this group. Amendments 129 and 131 are related, so I shall deal with them together. Amendments 130, 132 and 133 are separate but related to each other.

I will deal with amendments 130 to 133 first. Members might wish to know that those amendments were suggested to me by the BBC. They fall in section 63 of part 6.

Section 63 concerns the anonymity of a victim or complainer in a sexual offence listed in proposed new section 106C(5) of the Criminal Justice (Scotland) Act 2016. Under proposed new section 106C, no publication, which is a defined term, could publish certain information if to do so would be likely to lead to identification of the victim.

Members will note that the offences that are listed—the ones that prevent publication—all involve a sexual element, which makes sense, given that the whole section is about the reporting of sexual offences cases. However, one of them does not explicitly relate to sexual offences cases—the one in section 106C(5)(e) is the offence of human trafficking or slavery under the Human Trafficking and Exploitation (Scotland) Act 2015. In order for consistency with the rest of the offences that are listed in subsection (5)—and, indeed, with the purpose of the section—my amendment 130 would add the clarifier:

“where the offence”—

that is, of human trafficking or slavery—

“involved a sexual element”.

Amendments 132 and 133 would tighten the provisions further. I do not know whether they will be contentious. They would simply add provisions to proposed new section 106F of the 2016 act, which sets out the punishment for the offence of publishing information that would not be allowed to be published. It not only says what would happen to someone if they did that but, rightly, sets out the defence to the charge. Section 106F(3) states that one defence is when

“the person to whom the relevant information relates”—

the victim—has

“given written consent”

to its being published and has not, before the publication happens, withdrawn the consent by

“written notice”.

All that my amendment 132 would do is to clarify that the consent that would be needed up front from the victim to say that the information can be published could be written or other recorded consent. Amendment 133 provides that the notice to withdraw consent—the victim saying, “Actually, I don’t want you publishing this. Here’s my written notice”—could also be written or other recorded consent. I am trying to give the person who has the ability to give or withdraw consent an increased opportunity to protect themselves if they wish to do so and to remove any ambiguity.

With amendments 129 and 131, we stay in section 63, which members will remember is about anonymity for victims and restricting publication in sexual offences cases. Under that section, no one can publish information that identifies victims of sexual offences. Under proposed new section 106C(3), at the top of page 40, the restriction on publishing a victim’s information stops when that victim dies. Therefore, as soon as the victim died, the restriction on publication would go away under the section as drafted. If committee members agree to my amendment 129, that position would change such that the restriction on publishing information identifying the victim would continue after the victim died. The restriction would not go away just because they had died.

Amendment 131 would protect the position in so far as it is always important that absolute positions can be challenged. In proposed new section 106D of the 2016 act, which is on page 41 of the bill, the Government has rightly ensured that, when there is a child victim and someone other than that child wishes to publish information relating to that child, that someone can apply for a court order and a sheriff can grant it. A sheriff can reconsider the restriction on publishing in relation to a child victim and, if it is the right thing to do, lift it. My amendment 131 would simply add a new and pretty much identical section below proposed new section 106D so that there would be a pretty much identical power for a court to remove the restriction on publishing when someone had died.

Remember that, with amendment 129, I would change the position such that the restriction on publishing would carry on after someone had died, but, in amendment 131, I would give the court the power to take that away if necessary. I have added a further safeguard to amendment 131 such that family members of the deceased would have the opportunity to make representations before a decision was made.

Amendments 129 and 131 would extend the right of anonymity for complainers or victims of the listed offences so that it would continue after they had died and would ensure that there was the possibility of applying to the court to take away the restriction after the victim’s death. Colleagues will be keen to know that the two amendments have the support of the Law Society of Scotland—for transparency, I remind colleagues that I am a member of the Law Society—and that Victim Support Scotland supports amendment 129. For full transparency, it is important to note that Victim Support Scotland does not support my amendment 131.

I move amendment 129.

I am listening to the debate and genuinely trying to work out what to do for the best. I think that I completely understand Pauline McNeill’s intention.

To reflect back, I think that the cabinet secretary’s point was that, if your amendments 157 and 69 were agreed to, that could prevent rape from being tried in the sexual offences court. I think that that was the point that was made. If that is your intention, how do you respond to that point?

Great—thank you.

I am grateful to the cabinet secretary for her remarks. I will deal with all my amendments in the order in which I proposed them.

I am grateful to the cabinet secretary for dealing with amendment 130, and I will keep this short. The cabinet secretary makes a very persuasive case, and, having listened to her, I will not move that amendment.

I absolutely believe in what I am trying to do with amendments 132 and 133. However, again, having listened to the cabinet secretary, I think that there is a force of argument behind what she says. It would never be anyone’s intention to weaken the safeguards for victims. The cabinet secretary knows that I get very worked up about specifics and imprecise drafting, and her point was well made about how those particular amendments could be misunderstood. I will not move amendments 132 and 133 at this stage, but I would be very grateful if the cabinet secretary would work with me. I get the sense that the cabinet secretary agrees that there is something there, but we have to get it right if we are going to do it.

I am very grateful for the cabinet secretary’s comments on amendments 129 and 131. It concerns me when the cabinet secretary, for whom I have a great deal of respect, argues against my amendments. That always gives me pause for thought. The cabinet secretary also mentioned Dr Tickell, for whom I have the greatest respect. When Dr Tickell tells me that this might be challenging, that concerns me greatly. However, the cabinet secretary would expect me to argue back, and my brief arguments against her proposals start with a remark that she made about amendment 131 specifying that there is “no good reason” to refuse. My straight point on that is that all that I have done there is to mirror the existing drafting of section 106D(4)(b) of the 2016 act, which includes the phrase “no good reason”.

I hear the concern about extending anonymity beyond life, but my view is that that should be the default position for victims and complainers. Victim Support Scotland, in its submission, said that the bill is about greater protections for victims of sexual offences and that that protection should surely not lapse automatically on their death. An example that troubles me, which I had in mind, is when a victim of a sexual offence obtains lifelong anonymity but, a week later, is unfortunately dead. If my amendment 129 is not agreed to, all the details in such a case would become publishable straight away, which feels wrong. That cannot be right if we are to protect victims and their close family.

I remind the committee of evidence that we received during our stage 1 consideration from a victim of sexual assault, who said—as is set out anonymously in the submission—that they wanted anonymity to continue after their death because of the impact that removal would have on their family. They made quite a powerful statement:

“There should be no end point for anonymity for the complainer. Should be anonymous from the start and no end point, for the person’s dignity. Even if I was to die, or another complainer to die, the family would have to deal with it”.

I feel that that is quite a powerful argument that should give us pause for thought.

I am glad that the cabinet secretary raised the consultation on media reporting on child homicide victims, which is a very concerning issue; however, I think that we can distinguish the situations. First, the consultation focused on child victims of homicides, and the list of offences contained in section 106C(5) does not limit anonymity to such cases. Furthermore, the consultation does not show consensus on how the waiver of the right to anonymity of child victims of homicide should operate. Respondents highlighted that some families might have different views on whether details of the child victims should be published. Indeed, the analysis of the responses indicates that, for some respondents, ensuring the

“child homicide victim’s anonymity would help provide space for families to grieve in private and process information at their own pace.”

In any event, we cannot get away from the fact that provisions in the Victims, Witnesses, and Justice Reform (Scotland) Bill cover a wider spectrum of sexual offences cases.

The cabinet secretary made a persuasive argument about the situations in different jurisdictions, particularly Ireland and the state of Victoria in Australia. That gives me pause for thought, but other comparable jurisdictions have extended the right to anonymity beyond the victim’s death. I take as my authority the criminal justice division of the Scottish Government, which has produced a very helpful paper that I can easily distribute later if members have not seen it. The paper considers the example of Victoria and what happened there, as well as the examples of Ireland and Northern Ireland. The Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 extends the anonymity of all victims of sexual offences for 25 years after their death. I find that particularly interesting, not least because it follows recommendations made by Sir John Gillen, who indicated in his report that ceasing anonymity on the victim’s death might have a negative impact on victims who are suffering from a terminal illness and on the families of victims who have died.

Another example is Canada, where young people cannot be identified as a victim or a witness of an offence. That protection is automatic and indefinite. The paper also mentions New South Wales, where there is an automatic extension of anonymity for child victims beyond death, although next of kin have the right to waive that anonymity.

In summary, I am conflicted on the issue, as I think that my amendments 129 and 131 have merit. I hear the challenges from the cabinet secretary and Dr Tickell, but, on balance, I feel that I can meet those challenges and that the amendments are the right way to go.

Given that I can distinguish the Victims, Witnesses, and Justice Reform (Scotland) Bill from the points cited, I will press amendment 129.

Thank you.

I will take you back to your amendment 185, cabinet secretary, which you talked about at the start of your speech, because I want to clarify something in my own mind. I was waiting to see whether you would address the point.

Amendment 185 removes the Lord Justice General as the person to appoint judges and inserts the Scottish ministers. My concern is that that could look like a power grab by the Scottish ministers. The approach would be in marked contrast with the position in England and Wales, where the independent Judicial Appointments Commission appoints judges. Forgive me if this is what you were doing earlier, but can you walk me through why it is necessary to give ministers that power and to take it away from the Lord Justice General?

I do not think that you are taking up too much time. This is really interesting, and it is clear that your colleagues are trying to get to the bottom of what to do.

Am I right that amendment 157 hinges on amendment 155, which we talked about last week and which was not moved? If I am right about that, amendment 157 is consequential, and because amendment 155 did not go through, we ought not to move forward with amendment 157 today. However, amendment 69 is completely separate—it relates to a separate issue. Therefore, colleagues can come to different views on amendments 157 and 69.